Advisory Opinion No. 2011-36

Re: Stephen Durkee

QUESTION PRESENTED

The Petitioner, a Providence City Plan Commission member, a municipal appointed position, requests an advisory opinion as to whether he may participate and vote in the City Plan Commission’s consideration of matters in which the following appear: 1) his former architectural firm, Durkee, Brown, Viveiros & Werenfels (“Durkee Brown”); 2) current Durkee Brown clients; and 3) former Durkee Brown clients, including the Armory Revival Co. and Brown University.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Providence City Plan Commission member, a municipal appointed position, must recuse from participation and vote in the City Plan Commission’s consideration of any matters in which his former architectural firm, Durkee Brown, appears given that a business associate relationship continues to exist between the parties. However, the Code of Ethics does not require the Petitioner’s recusal on matters in which present or former Durkee Brown clients, including the Armory Revival Co. and Brown University, appear before the City Plan Commission provided that: 1) Durkee Brown does not appear on behalf of the client or former client; and 2) the matter under consideration does not involve a Durkee Brown project or financially impact Durkee Brown.

The Petitioner is a member of the Providence City Plan Commission (“CPC”) and currently serves as its Chairperson. In his private capacity, the Petitioner informs that he is an architect who served as a principal in the Durkee Brown architectural firm until May 2010, at which time he left and began working full-time at Cornish Associates. He represents that, pursuant to a separation agreement finalized in January 2011, he is no longer an owner or stock holder of Durkee Brown and that he has no formal or financial relationship with his former firm. As part of the separation agreement, the Petitioner advises that Durkee Brown will pay him a negotiated fixed amount in two separate payments, ending January 31, 2013, that are unaffected by any future Durkee Brown earnings. The Petitioner further represents that he maintains a 25% ownership interest in 111 Realty Partners, LLC, which owns the building in which Durkee Brown is a tenant.

The Petitioner inquires whether he has a conflict of interest under the Code of Ethics if Durkee Brown appears before the CPC. Additionally, he inquires whether he has a conflict of interest if a current or former Durkee Brown client appears before the CPC, although he is unaware of the identity of the firm’s current clients. In particular, the Petitioner informed Commission Legal Staff that the Armory Revival Co., a former Durkee Brown client, will be appearing before the CPC on June 21, 2011 relative to a request to increase its number of parking spaces. He represented that the subject parking was not included in the Armory Revival Co.’s Master Plan, which was approved by the CPC in 2003. The Petitioner advised that he recused from consideration of the Master Plan in 2003 due to the fact that Durkee Brown represented the Armory Revival Co. on another project at that time.

Further, the Petitioner informed Commission Legal Staff that it is anticipated that Brown University will be appearing before the CPC for an amendment to its Institutional Master Plan relative to expansion in the Jewelry District in Providence. He represented that Durkee Brown performed work on a series of small projects for Brown University over the years, such as accessibility improvements and small class room improvements, with the last major project having been performed in 2000.

Given the foregoing, the Petitioner seeks guidance from the Commission as to whether he may participate and vote in the CPC’s consideration of matters in which Durkee Brown, its current clients, and its former clients, specifically including the Armory Revival Co. and Brown University, appear before the CPC.

Under the Code of Ethics, 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 and employment in the public interest. R.I. Gen. Laws § 36-14-5(a). The Petitioner will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. Section 36-14-7(a). He is also prohibited from using his public position or confidential information received through his position to obtain financial gain, for himself or his family or business associates, other than that provided by law. Section 36-14-5(d).

Additionally, no business associate of any person subject to the Code of Ethics shall represent him or herself before the municipal agency of which the person is a member unless the agency is advised of the nature of the relationship and the official recuses himself from voting or otherwise participating in his agency’s consideration of the matter at issue. Section 36-14-5(f). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3).

Notwithstanding the fact that the Petitioner is no longer a principal of Durkee Brown, the Petitioner and his former firm continue to have a business associate relationship given that the terms of the separation agreement have yet to be satisfied. Until all obligations between the parties have been discharged, the Petitioner and Durkee Brown remain business associates under the Code of Ethics. As such, the Petitioner must recuse from participation and vote in the CPC’s consideration of any matters in which Durkee Brown appears before the CPC, as well as any matters that would financial impact Durkee Brown. See §§ 36-14-5(a), (d) and (f). Notice of recusal must be filed with the Ethics Commission in accordance with § 36-14-6.

The Commission has previously opined that when a public official is a principal of a company, that company’s various business relationships are imputed to the individual public official. See, e.g., A.O. 2006-27 (opining, inter alia, that a public official serving on both the Gloucester and Foster-Glocester Regional School Committees, who is a principal of a general contracting company, is a business associate of a company for whom his company provides subcontracting work); A.O. 2000-73 (opining that a Jamestown Planning Commission member, the principal of an engineering company, is a business associate of a marina for which the company continues to provide consulting services).

The Commission also has previously opined that a landlord tenant relationship is a business associate relationship pursuant to the Code of Ethics. See A.O. 2006-9 (opining that a New Shoreham Town Council member has a business association with his landlord requiring his recusal). Here, the Petitioner informs that he has a 25% interest in 111 Realty Partners, LLC, which owns the building in which Durkee Brown is located. Accordingly, the Petitioner and Durkee Brown have a business associate relationship that is independent of their outstanding obligations under the separation agreement. This business association provides a separate basis for the Petitioner’s recusal under the Code of Ethics, one which continues for the duration of Durkee Brown’s tenancy.

Further, the Petitioner seeks guidance as to whether the Code of Ethics places any limitations on his ability to participate in the CPC’s consideration of matters involving present and former Durkee Brown clients. The Commission has previously concluded that a public official is not automatically a business associate of any company with which his business associate has a business association. See, e.g, A.O. 2002-76 (opining that the Narrangansett Town Solicitor is not a business associate of his client’s business associate); also A.O. 2008-27; A.O. 2006-27. The fact that the Petitioner is Durkee Brown’s business associate does not automatically render him a business associate of Durkee Brown’s clients.

Absent an independent financial nexus between the Petitioner and the individual client, the relationship between the Petitioner and the client is too attenuated to trigger the prohibitions contained in the Code of Ethics. Therefore, the Petitioner may participate in the CPC’s consideration of matters involving current Durkee Brown clients, provided that: 1) Durkee Brown does not appear before the CPC on the client’s behalf; and 2) the matter under consideration does not involve a Durkee Brown project or financially impact Durkee Brown.

The relationships between the Petitioner and former clients of his business associate are even more remote and, as such, do not trigger the prohibitions of the Code of Ethics. Absent an independent financial nexus between the Petitioner and the former Durkee Brown client, including the Armory Revival Co. and Brown University, the Petitioner may participate in the CPC’s consideration of such matters subject to the same limitations set forth above.

Code Citations:

§ 36-14-2(3)

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-5(f)

§ 36-14-6

§ 36-14-7(a)

Related Advisory Opinions:

2008-67

2006-27

2006-9

2002-76

2002-70

2001-57

2000-73

Keywords:

Business associate

Recusal