Advisory Opinion No. 2014-29 Rhode Island Ethics Commission Advisory Opinion No. 2014-29 Approved: October 21, 2014 Re: Scott A. Lentz QUESTION PRESENTED: The Petitioner, a member of the North Smithfield Planning Board, a municipal appointed position, who is also a general, non-voting member of the North Smithfield Land Trust, a private non-profit entity, requests an advisory opinion regarding whether the Code of Ethics requires him to recuse from Planning Board matters relating to the North Smithfield Land Trust. RESPONSE: It is the opinion of the Ethics Commission that the Petitioner, a member of the North Smithfield Planning Board, a municipal appointed position, who is also a general, non-voting member of the North Smithfield Land Trust, a private non-profit entity, is not required by the Code of Ethics to recuse from Planning Board matters relating to the North Smithfield Land Trust, provided that there are no other facts or circumstances that would otherwise create a conflict of interest. The Petitioner is a member of the North Smithfield Planning Board (“Planning Board”), having been appointed as a full voting member in September 2014. He represents that he is also currently a general, non-voting member of the North Smithfield Land Trust (“Land Trust”), which is a private, non-profit organization that owns several properties in the Town of North Smithfield (“Town”) and works to preserve and protect the natural resources in the Town. He states that he has been a member of the Land Trust since December 2013. He informs that, as a member of the Land Trust, he makes an annual contribution and participates in a variety of volunteer activities including property clean-up, trail clearing, fundraising, education, and attending the Land Trust’s meetings. The Petitioner states that, on August 3, 2014, he was elected by the membership of the Land Trust to serve as the Secretary on the Land Trust’s Board of Directors. After his election, the Petitioner informs that his colleague at the Land Trust advised him that his position on the Board of Directors might constitute a conflict of interest if any matter involving the Land Trust came before him in his official capacity as a member of the Planning Board. Thereafter, the Petitioner contacted the Ethics Commission because the Planning Board was scheduled to consider a matter in which the Land Trust was an abutter on September 19, 2014.[1] The Petitioner was advised by Commission staff to recuse from any Planning Board matters involving the Land Trust based upon his status as a member of the Land Trust’s Board of Directors. The Petitioner represents that, on September 20, 2014, he resigned from his position as Secretary on the Land Trust’s Board of Directors and is now, once again, a non-voting member of the Land Trust.[2] Given that the Petitioner is no longer a member of the Land Trust’s Board of Directors, he seeks advice as to whether the Code of Ethics prohibits him from participating in Planning Board matters involving the Land Trust. Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). The Code also prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any business by which he is employed or whom he represents. Section 36-14-5(d). Finally, a public official must recuse himself from any matter in which his business associate appears before the municipal agency of which he is a member or by which he is employed. Section 36-14-5(f); Commission Regulation 36-14-5002(a)(2). A “business associate” is defined as an individual or business entity joined together with another person to achieve a common financial objective. Section 36-14-2(3), (7). The Commission has previously stated that persons are “business associates” of the entities for which they serve as either officers or members of the Board of Directors, or in some other leadership position that permits them to affect the financial objectives of the organization. See, e.g., A.O. 2012-28 (opining that a Tiverton Planning Board member, who was also a member of the Board of Directors of the Tiverton Yacht Club (“TYC”), was a business associate of the TYC and, therefore, was required to recuse from participating in the Planning Board’s consideration of a proposed amendment to the Tiverton Zoning Ordinance that was requested by the TYC). In contrast, however, the Commission has generally held that mere membership in an organization, as opposed to the holding of a leadership position as a director or officer does not create a business association requiring recusal. In particular, the Commission has previously found that general membership in a private, non-profit land trust does not constitute a business association. See A.O. 2008-35 (opining that a Tiverton Zoning Board member’s general membership and annual contributions to the Tiverton Land Trust, a private non-profit organization, did not constitute a business associate relationship with the Tiverton Land Trust and, thus, she was not required to recuse from Zoning Board matters involving the Land Trust); A.O. 2008-36 & A.O. 2008-34 (finding no business association after considering facts nearly identical to A.O. 2008-35). See also A.O. 2013-26 (opining that a Newport City Council member was not prohibited by the Code of Ethics from participating in the City Council’s review of matters involving the Newport Yacht Club, notwithstanding that her husband was an individual, general member of the Newport Yacht Club); A.O. 2009-39 (opining that the Barrington Town Planner’s general membership in the Bayside Family YMCA (“YMCA”), where he did not serve in any leadership position, did not constitute a business associate relationship with the YMCA and, thus, he was permitted to participate in Barrington’s review of the YMCA development proposal and plans). In the present matter, the Petitioner is currently a general, non-voting member of the Land Trust after resigning from his short-lived position as Secretary on the Land Trust’s Board of Directors. Although he was briefly a member of the Board of Directors, he states that he never attended a Land Trust meeting as a voting member. He further states that, as a non-voting member of the Land Trust, he has no greater power or privileges than any other non-voting member of the Land Trust. He represents that, although he makes annual contributions and volunteers his services for the Land Trust, he is neither an officer nor a member of the Board of Directors, nor does he hold any type of leadership position that would allow him to affect the Land Trust’s financial objectives. For all of these reasons, we find that the Petitioner’s status as a volunteer, member/contributor to the Land Trust does not constitute a “business associate” relationship as that term is defined in the Code of Ethics. Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not required by the Code of Ethics to recuse from Planning Board matters relating to the Land Trust, provided that there are no other facts or circumstances that would otherwise create a conflict of interest. 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, ordinance, constitutional provision, charter provision, policy, or canon of professional ethics may have on this situation. Code Citations: § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-5(f) § 36-14-7(a) Commission Regulation 36-14-5002 Related Advisory Opinions: A.O. 2013-26 A.O. 2013-25 A.O. 2009-39 A.O. 2008-36 A.O. 2008-35 A.O. 2008-34 A.O. 2007-53 Keywords: Business Associate