Advisory Opinion No. 2015-10 Approved: March 10, 2015 Re: Wendy A. Regan QUESTION PRESENTED: The Petitioner , a member of the North Providence Planning Board, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from participating in the Planning Board’s consideration of the Washington Trust Company’s application to construct a bank on Mineral Spring Avenue , given that her employer has a n ongoing business relationship with the Washington Trust Company. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the North Providence Planning Board, a municipal appointed position, is prohibited by the Code of Ethics from participating in the Planning Board’s consideration of the Washington Trust Company’s application to construct a bank on Mineral Spring Avenue, given that her employer has a n ongoing business relationship with the Washington Trust Company. The Petitioner is a member of the North Providence Planning Board (“Planning Board”) , having been appointed in November 2014 . She represents that the Planning Board reviews development applications to ensure that certain phases of project s are consistent with the Town of North Providence’s (“Town”) Comprehensive Plan . She informs that the Planning Board also provides non-binding, advisory recommendations to the North Providence Zoning Board (“Zoning Board”) relative to applications for certain variances. She states that , in March 2015 , the Planning Board is scheduled to consider the Washington Trust Company’s (“Washington Trust”) application to construct a freestanding bank on Mineral Spring Avenue (“Mineral Spring Branch”) in Town. In her private capacity, the Petitioner represents that she is employed as a full-time Zoning Compliance Associate at Mandeville Sign, Inc. (“Mandeville”), located in Lincoln, Rhode Island. [1] She states that Mandeville Sign has had a long-standing, professional relationship with Washington Trust in which it has historically been awarded contracts to manufacture and install signs at Washington Trust bank locations. She represents that Mandeville seems to be Washington Trust’s preferred sign contractor and will likely receive the contract to manufacture and install the signs at this new location. She informs that she is an hourly employee at Mandeville and does not receive any share of the profits or bonus pay relative to any particular contract. The Petitioner represents that Washington Trust must receive approvals from both t he Planning Board and the Zoning Board in order to construct the proposed Mineral Spring Branch. S he states that Washington Trust must first receive preliminary site plan approval from the Planning Board, which is a determination that the application is consistent with the Town’s Comprehensive Plan. She states that the proposed Mineral Spring Branch would be replacing a double drive-thru Dunkin’ Donuts in a commercial zoning district . She informs that the Planning Board will also review Washington Trust’ s variance applications and provide a non-binding, advisory recommendation to the Zoning Board regarding whether to grant the variances. Finally, the Zoning Board will consider Washington Trust’s variance applications and determine whether to grant the variances. Only at that time, after receiving all variances and permits, could Washington Trust construct the proposed Mineral Spring Branch. Given her employer’s business relationship with Washington Trust, the Petitioner seeks advice as to whether the Code of Ethics prohibits her from participating in the Planning Board’s consideration of Washington Trust’s current development application for the proposed Mineral Spring Branch. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her 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 she, any person within her family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). The Code of Ethics also prohibits a public official from using her public office or confidential information received through her public office to obtain financial gain for herself, her family, her business associate, or any business by which she is employed or which she represents. Section 36-14-5(d). Finally, a public official must recuse herself from any matter in which her business associate appears before the municipal agency of which she is a member or by which she 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 above provisions of the Code of Ethics prohibit the Petitioner from taking any official action as a member of the Planning Board where it is reasonably foreseeable that her actions would have a financial impact upon her employer . See A.O. 2013-18 (opining that a member of the Health Services Council (“HSC”) was required to recuse from the HSC’s consideration of Care New England Health System’s application to merge with Memorial Hospital, given his various connections to Butler Hospital , a Care New England Health System operating unit , as both a n individual member of the Corporation of Butler and as an independent contractor to the hospital ) ; A.O. 2004-38 (opining that a New Shoreham Town Council member was required to recuse from the Town Council’s consideration of his private employer ’s liquor license). Based upon the Petitioner’s representations, Mandeville and Washington Trust have a long-standing business relationship in which Mandeville is Washington Trust’s preferred sign contractor and routinely receives contracts for the manufacture and installation of signs at Washington Trust’s new bank locations. Therefore, it is reasonably foreseeable that if Washington Trust receives all the necessary approvals from the Town, then Mandeville will receive a contract from Washington Trust to manufacture and install the signs for the new Mineral Spring Branch. For all of these reasons , it is the opinion of the Ethics Commission that the Petitioner is prohibited by the Code of Ethics from participating in the Planning Board’s consideration of the Washington Trust Company ’ s application to construct a bank on Mineral Spring Avenue, given that her employer has a n ongoing business relationship with Washington Trust . 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, ordinance, constitutional provision, charter provision, 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) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5002 Related Advisory Opinions: A.O. 2013-18 A.O. 2004-38 Keywords: Business Associate Private Employment Recusal [1] Mandeville is a small, family-owned commercial sign company with a wide range of clients nationwide. The Petitioner represents that she works on Mandeville’s nationwide Panera Bread account and will occasionally assist colleagues on other contracts who seek her advice because of her expertise in zoning laws.