Town of Johnston v. Santilli

892 A.2d 123, 2006 R.I. LEXIS 30, 2006 WL 508057

• Court: Supreme Court of Rhode Island
• Decided: March 3, 2006
• Docket: 2004-320-Appeal
• Status: Published

Opinions

OPINION

Justice FLAHERTY,

for the Court.

A hostile and fractious relationship between town hall and the school committee in the Town of Johnston has led to repeated clashes in the courtroom and in hearings before the Commissioner of Education. The specific battles between them primarily have been over money and budgetary control, but also have included allegations of intimidation of school department personnel, including the Superintendent of Schools, by both the Mayor and the Director of Finance.

The dispute before us presently involves cross-appeals from a declaratory judgment in which a justice of the Superior Court ruled that the Charter of the Town of Johnston does not require that the town solicitor be the exclusive legal counsel to the school committee.¹ For the reasons set forth herein, we reverse.

I

Facts and Procedural History

The Johnston Town Charter establishes the Office of Town Solicitor and reserves in the mayor the authority to appoint a town solicitor as well as assistant town solicitors. The charter expressly delineates the duties of the town solicitor: he or she is to “be the attorney for the town and legal advisor to the Mayor, town council, and all other departments, offices and agencies of the town government.” Despite this clear language, the school committee often has engaged the services of attorneys not affiliated with the town solicitor’s office for a variety of reasons. It is also beyond dispute that the town administration and the school committee frequently have been embroiled in legal battles with each other, some of them visceral in nature. For example, in 1995 and again in 1998, the school committee alleged that the town failed to honor school department invoices, and the parties appeared before the Commissioner of Education to resolve the controversy. Also, in 1995, the school committee and the town again appeared before the commissioner when the school committee claimed that the town failed to provide it with sufficient funding, thereby rendering it unable to comply with state and federal mandates and its contractual obligations.

In 2001, the Superior Court granted the school committee injunctive relief when it again demonstrated that the municipality wrongfully had refused to honor school department invoices. Among the school committee’s allegations was a claim that the town had frozen certain student activity accounts, threatening the cancellation of student field trips and other extracurricular activities. Each time one of these intramural slugfests has occurred, the town solicitor has represented the town and the school committee has retained outside counsel.

The positions of the parties concerning legal representation became crystallized in 1997, when the Johnston Federation of Teachers (union) sued the school committee, which then engaged independent counsel to defend itself. The union objected, arguing that only the town solicitor could represent the school committee. The solicitor moved to intervene to support the union position. It appears that cooler heads prevailed at that point, however, and in February 1998, the town council enacted Ordinance 1029, which authorized the school committee to hire its own lawyer.

Accompanying Ordinance 1029 was Town Council Resolution 421, passed on the same date and appointing the law firm of Asquith, Mahoney and Robinson to represent the school committee “on all matters until further notice.” The resolution also expressed an intent to submit legislation to the General Assembly to amend title 16 of the General Laws so that the school committee would be enabled to engage its own legal counsel on a permanent basis.

The era of good feeling was short-lived, however, and on July 1, 2002, town solicitor Louis A. DeSimone corresponded with David Santilli, the chairman of the Johnston School Committee. In his letter, De-Simone reminded Santilli that the charter provides that the town solicitor “shall act as attorney for all departments and agencies of the Town of Johnston.” DeSimone expressed his intention to begin to provide legal services to the school committee, and asked that all legal matters be referred to his office. Apparently, the solicitor’s letter did not have the desired effect on the school committee, which continued to employ outside counsel as it saw fit. Matters came to a head on December 9, 2002, when the town council repealed Ordinance 1029. Shortly thereafter, on January 13, 2003, the town filed a complaint against the school committee in Superior Court, in which it alleged that notwithstanding the directive of the town solicitor and the repeal of the ordinance authorizing the retaining of outside counsel, the school committee had continued to employ attorney Stephen M. Robinson to represent it in legal matters. This, the town contended in its complaint, directly contravened the express mandate contained in the town charter. The town therefore asked the court to declare that only the solicitor could act as legal advisor to departments and agencies of the town, including the school committee. The town also requested the court to enjoin the school committee from seeking independent legal counsel. The school committee counterclaimed and argued that due to the contentious. relationship between the town and the school committee, the town solicitor, whose interests were aligned with those of the town, could not represent the school committee without violating relevant provisions of the Supreme Court Rules of Professional Conduct and the Rhode Island Code of Ethics. The school committee requested that the court declare that it had the right to retain independent legal counsel, and it asked that the town be enjoined from interfering with this right. The parties filed cross-motions for summary judgment.

The Superior Court granted the school committee’s motion. The justice specifically did not rule on whether the town solicitor, in accordance with the Rules of Professional Conduct and the Code of Ethics, must refrain from representing the school committee when particular conflicts of interest arise. Rather, he declared that the Johnston Town Charter, which requires the solicitor to act as counsel for municipal departments and agencies of the town, does not apply to the Johnston School Committee, and therefore the school committee has the right to seek legal services from attorneys other than the town solicitor or assistant town solicitors.

The town filed a timely appeal, in support of which it argues that the justice abused his discretion when he ruled that the school committee has the inherent authority to engage its own legal counsel. The school committee cross-appealed, and argues that the trial court should have resolved the issue of whether the relationship between the school committee and the town solicitor creates a conflict of interest that would prohibit the solicitor from providing legal advice or representation to the school committee.

II

Standard of Review

Both the school committee and the town maintain that because this case arises from an appeal of a declaratory judgment, this Court should review the justice’s decision for abuse of discretion. See Sullivan v. Chafee, 703 A.2d 748, 751 (R.I.1997) (setting forth the standard of review for declaratory judgments). However, the basis of the parties’ dispute actually hinges on the interpretation of Johnston’s home rule charter, and this Court previously has explained that “[w]hen a court is called upon to construe the provisions of a municipal charter, the usual rules of statutory construction are employed.” Coventry School Committee v. Richtarik, 122 R.I. 707, 713, 411 A.2d 912, 915 (1980) (citing Borromeo v. Personnel Board, 117 R.I. 382, 367 A.2d 711 (1977)). Therefore, when we interpret the meaning of a charter provision, we apply the same de novo standard of review that we use when faced with questions of statutory construction. See State v. Partington, 847 A.2d 272, 276 (R.I.2004) (applying de novo review after party sought declaratory judgment in statutory construction case). When we do so, we give the words of a charter provision “their usual and ordinary meaning.” Carter v. City of Pawtucket, 115 R.I. 134, 138, 341 A.2d 53, 56 (1975).

Ill

Analysis

A. The Johnston Town Charter

To determine the effect of Johnston’s Town Charter on the school committee’s right to hire independent counsel, we begin our analysis, as always, with the language of the disputed charter provisions:

“Sec. 6-4. Duties.

“The town solicitor shall be the attorney for the town and legal advisor to the mayor, town council, and all other departments, offices and agencies of the town government and shall direct the work of the assistant solicitors. It shall be the duty of the town solicitor to:

“(1) Appear for and protect the rights of the town in all actions, suits and proceedings, civil or criminal, in law or equity, brought by or against it or for or against any of its departments, including the board of canvassers and registration;

“(2) Examine and make recommendations in the form of all ordinances and resolutions and the form of all initiations for bids, contracts and other documents sent out by any department, office or agency of the town;

“(3) Perform such other duties appropriate to his office as the provisions of this Charter, the Mayor and/or the town council may require.” (Emphasis added.)

“Sec. 6-6. Special powers.

“The statement in this Charter of duties of the town solicitor shall not be deemed to abridge such special powers and duties as are now and hereafter conferred upon town solicitors by law; however, no department or agency shall employ any other attorney at the expense of the town or through the use of any funds from the federal government or other source, unless otherwise provided by this Charter, or unless the town council shall approve such employment by ordinance. Any such attorney so authorized by the town council shall be subordinate to the town solicitor and in all litigation to which the town may be a party, said attorney shall be under the direction of the town solicitor.” (Emphasis added.)

The school committee contends that sec. 6 — 4 of the charter does not impact its right to hire independent counsel because the school committee is not a “department[ ], office[ ], [or] agencfy] of the town government,” and thus it does not fall within the language of the charter. It further maintains that sec. 6-6 has no bearing on whether the school committee may employ its own lawyer because the portion of that provision addressing this issue has not been ratified by the General Assembly.

B. Laws Affecting Public Education

In arguing their respective positions, both sides start from a constitutional source. On one hand, the school committee argues that article 12, sec. 1, of the Rhode Island Constitution vests the General Assembly with authority and control over matters affecting public education. On the other hand, the town maintains that the Home Rule Amendment to the Constitution, set forth in article 13, just as concisely vests the cities and towns of Rhode Island with “the right of self government in all local matters.”

Under the state’s constitution, the General Assembly has a responsibility to “promote public schools * * * and to adopt all means which it may deem necessary and proper to secure to the people the advantages and opportunities of education * * *.” R.I. Const. art. 12, sec. 1. Pursuant to this directive, the Legislature enacted G.L.1956 § 16-2-9(a), which vests school committees with the “entire care, control, and management” of local schools, as well as enumerating additional rights and duties.² Although the statute is silent about the right to retain legal counsel, the school committee suggests that the broad administrative powers conferred include the right to retain its own attorney.

Although the Legislature is constitutionally charged with overseeing education in this state, towns and cities are permitted to control local government pursuant to the Home Rule Amendment to our state constitution. R.I. Const. art. 13. The interplay between the Legislature and town governments in regulating public education was discussed in Royal v. Barry, 91 R.I. 24, 160 A.2d 572 (1960). In that case, we explained that “no provision affecting education contained within a home rule charter, so called, can effectively regulate the conduct of school committees as agents of the state unless expressly validated by an act of the general assembly.” Id. at 30, 160 A.2d at 575.

Notwithstanding the right of towns and cities to regulate local matters, we have held previously that “[w]hen local laws conflict with general laws of statewide application, the former must defer to the latter.” Local No. 799, International Association of Firefighters AFL-CIO v. Napolitano, 516 A.2d 1347, 1349 (R.I.1986) (citing O’Neill v. City of East Providence, 480 A.2d 1375, 1379 (R.I.1984)). This rule, however, does not apply when the conflicting charter provision has been legislatively ratified. Id. In such instances, we view the conflicting charter provision as “a special act [that] takes precedence over any inconsistent provisions of the general laws.” Id.

We agree with the school committee that because most of sec. 6-6 was not ratified by the Legislature, it is not helpful in resolving the issue before us.³ Thus, if the town charter limits the school committee’s right to retain its own attorney, such restriction must be found in the language of sec. 6-4, which was ratified by the Legislature in 1963.⁴ See P.L.1963, ch. 187. Consequently, even if we were to conclude that § 16-2-9 empowers school committees to hire independent counsel, the right of the Johnston School Committee to do so would be superceded by sec. 6-4, because under our well-settled jurisprudence, the legislatively-ratified charter provision would take precedence over the general law. Napolitano, 516 A.2d at 1349.

C. Is the Johnston School Committee a “Department” of the Town?

Despite the legislative validation of sec. 6-4, the school committee maintains that this provision of the town charter does not affect its right to retain independent legal counsel because it is not a “department” of the town. Conversely, the town argues that although the charter does not explicitly refer to it as such, the school committee nevertheless is a department of the town government that is encompassed within the ambit of sec. 6-4. To support this position, the town notes that in Cummings v. Godin, 119 R.I. 325, 330, 377 A.2d 1071, 1073 (1977), we held that although school committees act as agents of the state, they are not state agencies but municipal bodies.

In Cummings, a school teacher argued that a home rule provision prohibiting city employees from holding any elective office did not preclude his candidacy for state senate. The teacher maintained that he was not an employee of the city, but rather an agent of the state, because the state constitution mandates that education is a matter of state responsibility. We disagreed, and held that “school committees, although exercising a portion of the state’s power over education, are, nonetheless, municipal bodies, and their employees * * * are municipal employees.” Cummings, 119 R.I. at 330, 377 A.2d at 1073. We noted that the teacher “[was] employed by a department of the city which is supported by the taxpayers of that city, and he receives his paycheck from the city.” Id. at 331, 377 A.2d at 1074.⁵ (Emphasis added.)

After Cummings, this Court again had occasion to consider the effect of a home rule charter on the rights of a school committee. See Coventry School Committee v. Richtarik, 122 R.I. 707, 411 A.2d 912 (1980). Like the case before us now, the charter provision in Richtarik set forth the town solicitor’s responsibilities as legal representative of the town. It stated in pertinent part:

“(1) ‘The town solicitor shall serve as chief legal advisor to the council and to the town manager;

“(2) ‘[t]he town solicitor shall appear for and protect the rights of the town in all actions, suits, or proceedings, civil or criminal, in law or equity, brought by or against it, or for or against any of its departments, offices or agencies, including the council, the manager and the school committee;

“(3) ‘[t]he town solicitor shall also perform such other duties, appropriate to his office, as the council and the manager may require;

“(4) ‘[t]he town solicitor shall examine and approve the form of all ordinances and resolutions, of all invitations to bid, contracts, and other legal documents issued by any department, office or agency of the town;

“(5) ‘[a]ll written opinions of the town solicitor furnished to the council, the manager, and all departments, offices and agencies of the town shall be filed with the town clerk and shall become a public record.’ ” Id. at 711-12, 411 A.2d at 914 (quoting relevant portion of Coventry Town Charter).

We interpreted the charter provision in Richtarik, which had been legislatively ratified, to require that the town solicitor serve as the school committee’s sole source of legal representation. The defendants attempt to distinguish Richtar-ik from the present case by noting that the Coventry charter provision made explicit reference to the “school committee.” A closer reading of Richtarik reveals, however, that this distinction was not critical to our holding in that case. Citing subsection (2) of the applicable charter provision, the trial justice ruled that the Coventry solicitor was responsible for representing the school committee in litigation, but that the committee was free to seek legal advice elsewhere with respect to non-litigation matters because the other subsections of the charter provision were silent on the subject.

On appeal, this Court disagreed with the trial justice’s reasoning and interpretation of the charter provisions. We explained that the “limited advisory role given the solicitor by the trial justice is completely at odds with and effectively nullifies the mandate concerning the solicitor’s written opinions, which are to be given to all ‘departments, offices, and agencies of the town.’ ”⁶ In addition, subsection (2) of the charter provision specifically referred to the school committee as a town department. When we decided Richtarik, we reiterated our reasoning in Cummings, that “school committees are not ‘state agencies’ because they act only on matters of local concern; and * * * although the committees exercise a portion of the state’s power in the field of education, they are nonetheless ‘municipal bodies’ and their employees ‘municipal employees.’ ” Richtarik, 122 R.I. at 714, 411 A.2d at 915. We also held that even though the portion of the town charter that delineated the solicitor’s advisory role did not refer explicitly to the school committee, the document was to be interpreted so that the solicitor’s office would serve as the sole source of legal assistance for all the various municipal boards, departments, and agencies, including the school committee. Thus, the Coventry School Committee lacked the authority to retain its own counsel.

We fail to see any meaningful distinction between the charter provision in Richtarik and the one at issue here. Like the Coventry Town Charter, sec. 6-4 of the Johnston Town Charter has been ratified by the Legislature and requires the town solicitor to provide legal services to “all * * * departments, offices and agencies of the town.” We interpreted this language in Richtarik as requiring that the school committee be represented by the town solicitor. Moreover, it is clear from our analysis in Richtarik that we relied heavily on this Court’s rationale in Cummings, in which we defined school departments as municipal bodies. We see no reason to depart from this reasoning. We therefore are not persuaded by the defendants’ attempt to distinguish Richtarik from the case before us on the ground that the Coventry Town Charter referred explicitly to the school committee while the Johnston Town Charter does not. We hold that sec. 6-4 of the Johnston Town Charter, which requires the town solicitor to represent “all * * * departments, offices and agencies of the town,” applies to the school committee and prohibits it from retaining independent legal counsel, unless, as will be described below, the town solicitor is unable to represent the school committee because of ethical considerations.

D. Conflicts of Interest

Notwithstanding our conclusion that sec. 6-4 of the Johnston Town Charter requires the town solicitor to serve as the school committee’s legal counsel, we realize that situations may arise in which the solicitor’s ethical and professional obligations may prevent him from doing so. This Court previously recognized this potential conflict in Richtarik, where we explained that:

“There is a well-recognized exception to this principle which recognizes the implied authority of a municipal board or officer to hire counsel in the good-faith prosecution or defense of an action taken in the public interest and in conjunction with its or his official duties where the municipality’s attorney refuses to act or is incapable of or is disqualified from acting.” Richtarik, 122 R.I. at 715, 411 A.2d at 916.

In the days since Richtarik was decided, relationships statewide between municipalities and their respective elected school committees steadily have worsened. The annual battles, usually but not always over money, routinely have resulted in relationships that are at best strained and at worst toxic. In this light, the exception carved out in Richtarik seems prophetic.

For instance, § 16-2-21.4(b) authorizes school committees to sue municipalities in the event of inadequate school funding. In such cases, it would be difficult if not impossible for the solicitor to represent both parties, and there is perhaps no better example highlighting our concerns than the truculent relations between the Johnston School Committee and the town government.

Nevertheless, there are many occasions where a town solicitor’s duties may not be impeded by ethical concerns. For example, in matters concerning bidding, contracts, tort defense, and issues arising under G.L.1956 § 38-2-1 (public records) and G.L.1956 chapter 46 of title 42 (open meetings), a school committee’s interests may not be adverse to the town’s. Conflicts inevitably will arise, however, and when they do, solicitors will find themselves in difficult situations.

The school committee suggests that its interests and the town’s are so inherently adverse that the solicitor may be unable to represent both parties, regardless of the particular circumstances. Although Richtarik described such circumstances as an exception, rather than a rule, the school committee notes that the current version of Rhode Island’s Code of Ethics was not in force at that time, and the parties in that case did not raise any issues concerning an earlier version of the code. Moreover, the school committee contends that the Rules of Professional Conduct may bar the solicitor from serving as its attorney while also representing the town.

We agree with the school committee to the extent the Code of Ethics and the Supreme Court Rules of Professional Conduct are significant in determining whether the solicitor can properly represent both the school committee and the town. However, we do not believe that these strictures serve as an absolute bar. As noted above, there are many instances where the school committee’s interest and the town’s will not be adverse, and in fact, they may often be closely aligned. Conflicts must be determined utilizing a case-by-case analysis and will necessarily require good faith dealing among the solicitor, the school committee, and the municipality.

We believe that the Rhode Island Code of Ethics⁷ and our Rules of Professional Conduct serve as adequate guideposts for the parties. For example, G.L.1956 § 36-14 — 5(b) of the Code of Ethics provides that:

“No person subject to this code of ethics shall accept other employment which will either impair his or her independence of judgment as to his or her official duties or employment or require him or her, or induce him or her, to disclose confidential information acquired by him or her in the course of and by reason of his or her official duties.”

The Rules of Professional Conduct also provide guidance when a solicitor is faced with conflicting interests. Specifically, Article V, Rule 1.7 of the Supreme Court Rules of Professional Conduct provides:

“Conflict of Interest: General Rule, (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

“(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

“(2) each client consents after consultation.

“(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:

“(1) the lawyer reasonably believes the representation will not be adversely affected; and

“(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.”

We recognize that there exists a public policy argument that in the current environment, school committees should have their own legal counsel. That debate, however, should be resolved in the public forum or in the Legislature, not in the courts.

IV

Conclusion

For the reasons stated herein, we reverse the judgment of the Superior Court. The record shall be remanded to the Superior Court.

1 . The defendants are the elected members of the school committee and the superintendent of Johnston public schools. For simplicity, we will refer to all defendants as the "school committee” or "defendants.”

2 . In addition to conferring general responsibility for administrative functions upon local school committees, G.L.1956 § 16-2-9 also delegates several specific responsibilities. See, e.g., § 16-2-9(a)(3) (requiring compliance with state and federal laws); § 16-2-9(a)(6), (13) to (15) (granting school committees authority over personnel matters); § 16-2-9(a)(18) (conferring upon school committees the right to enter into contracts).

3 . Section 6-6 of the Johnston Town Charter was amended in 1982 to prohibit departments and agencies of the town from hiring outside legal counsel, unless such action was allowed by the town charter or by ordinance. This amendment, highlighted above, has not been ratified by the Legislature.

4 . The Johnston Town Charter was amended and again ratified in 1965. The difference in language between the 1963 and the 1965 versions is not material to this case.

5 .Despite our holding that the teacher was a city employee, and thus precluded by the charter from running for state office, he ultimately was successful in challenging the charter provision on First Amendment grounds.

6 . Section 6-5 of the Johnston Town Charter is strikingly similar to the subsection set forth in the Coventry Town Charter. Section 6-5 provides:

"Written opinions to be public.

"All written legal opinions furnished to the mayor, the town council arid all departments, offices and agencies of the town shall be filed with the town clerk and become a public record.”

7 . The state’s commitment to ensuring ethical conduct among its public officials is so imperative that it has been amended to the state's constitution. Article 3 of the Rhode Island Constitution, in relevant part, provides as follows:

"Section 7. Ethical conduct. — The people of the state of Rhode Island believe that public officials and employees must adhere to the highest standards of ethical conduct, respect the public trust and the rights of all persons, be open, accountable and responsive, avoid the appearance of impropriety and not use their position for private gain or advantage. Such persons shall hold their positions during good behavior."

Consistent with this goal, article 3 creates an Ethics Commission with rule-making authority:

"Section 8. Ethics commission — Code of ethics. — The general assembly shall establish an independent non-partisan ethics commission which shall adopt a code of ethics including, but not limited to, provisions on conflicts of interest, confidential information, use of position, contracts with government agencies and financial disclosure. All elected and appointed officials and employees of state and local government, of boards, commissions and agencies shall be subject to the code of ethics. The ethics commission shall have the authority to investigate violations of the code of ethics and to impose penalties, as provided by law; and the commission shall have the power to remove from office officials who are not subject to impeachment.”