Advisory Opinion No. 2017-43 Rhode Island Ethics Commission Advisory Opinion No. 2017-43 Approved: September 26, 2017 Re: Anthony DeSisto QUESTION PRESENTED : The Petitioner, whose firm is the Solicitor for the Town of Warren, a municipal appointed position, requests an advisory opinion regarding whether he is prohibited by the Code of Ethics from representing or advising the Town of Warren Planning Board on a major subdivision application, given that the applicant bears a name that is identical to one of Petitioner’s former clients. RESPONSE : It is the opinion of the Rhode Island Ethics Commission that the Petitioner, whose firm is the Solicitor for the Town of Warren, is not prohibited by the Code of Ethics from representing or advising the Town of Warren Planning Board on a major subdivision application, notwithstanding that the applicant bears a name that is identical to one of Petitioner’s former clients. The Petitioner represents that in his private capacity he is an attorney whose firm is the appointed Solicitor (“Town Solicitor”) for the Town of Warren (“Town”). The Petitioner explains that, as the Town Solicitor, the firm advises and represents all Town boards and commissions including the Town of Warren Planning Board (“Planning Board”). The Petitioner states that currently before the Planning Board is an application for a major subdivision of three lots owned by Long Lane Development LLC (“Long Lane LLC”). The Petitioner informs that he represented an entity known as Long Lane Development LLC (“Former Client”)[1] and its owner Giuseppe Coen (“Mr. Coen”) on a subdivision application relative to the same property that is subject to the new subdivision application currently before the Planning Board. The Petitioner states, however, that the attorney-client relationship between him and Mr. Coen ended in 2008 before ever completing the process for subdivision approval. The Petitioner represents that his Former Client’s charter was revoked in 2012. The Petitioner explains that in 2014 Joseph A. Brito, Jr. (“Mr. Brito”) formed Long Lane LLC, which is wholly separate and distinct from the Petitioner’s Former Client. The Petitioner states that he has never had any business relationship with Mr. Brito or Long Lane LLC, nor does he anticipate one in the future. The Petitioner also states that a search of his firm’s files revealed that he once represented a party adverse to Mr. Brito in a lawsuit that has been since closed. Given this set of facts, the Petitioner is seeking the guidance of the Ethics Commission regarding whether the Code of Ethics prohibits him from representing or advising the Planning Board on matters related to the subdivision application. 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 of Ethics 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 person 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 or presents evidence or arguments before the municipal agency of which he is a member or by which he is employed. 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). In past advisory opinions, the Ethics Commission has required public officials to recuse from consideration of a matter if the official had an ongoing or anticipated business relationship with an individual or entity appearing before his public body. See A.O. 2016-45 (opining that a member of the Tiverton Planning Board is prohibited from participating in the Planning Board’s discussions and voting relative to a matter in which her business associate appears as an expert witness, given that they have worked together professionally in the past on projects and often refer work and clients to each other); A.O. 2005-64 (opining that a member of the Burrillville Redevelopment Agency may not participate in discussions or votes on matters coming before the Agency regarding a nonprofit developer’s request for approval of a project, given that the petitioner is a partner in an accounting firm that provides accounting services to this developer on a “continuing basis”). Furthermore, the Ethics Commission has found that the attorney-client relationship creates a business association for purposes of the Code of Ethics. See A.O. 2007-5 (stating that “an attorney and his or her clients are considered to be business associates as that term is defined in the Code of Ethics”); A.O. 98-71 (opining that a Solicitor is required to recuse on Nature Conservancy matter where he provided legal representation to the Environmental Council of which the Nature Conservancy is a member of the Board). However, an attorney-client relationship ceases being a business association for purposes of the Code of Ethics once the attorney no longer represents the client “in an ongoing matter, bills for prior representation have been paid and there are no plans for specific representation in the near future . . . .” A.O. 2003-17. Therefore, while the Code of Ethics clearly prohibits a petitioner from participating in matters directly affecting his current business associates, the Ethics Commission has permitted public officials to participate in matters involving or impacting his former business associates, provided that the business relationship between the public official and the other party has ended and there is no specific future business relationship anticipated between the parties. See A.O. 2016-29 (finding that a member and Chairman of the West Warwick Arctic Village Redevelopment Agency must recuse from any matters before his agency that involve or financially impact his current business associates but was not required to recuse from matters that involve or impact his prior business associates, provided that there is no specific future business relationship anticipated); A.O. 2013-21 (opining that a member of the State Labor Relations Board, a private attorney, was not required to recuse from matters involving his former law client provided that the representation had concluded, that all outstanding legal fees were paid in full, and there was no reasonable likelihood of reestablishing an attorney/client relationship in the foreseeable future). Here, the Petitioner represents that he has never had, and does not anticipate having, any specific future business relationship with Mr. Brito or Long Lane LLC. Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from representing or advising the Planning Board on matters relative to the subdivision application. 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) § 36-14-7(a) Commission Regulation 36-14-5002 Related Advisory Opinions : A.O. 2016-45 A.O. 2016-29 A.O. 2013-21 A.O. 2007-5 A.O. 2005-64 A.O. 2003-17 A.O. 98-71 Keywords : Business Associate [1] To avoid confusion, we will address the Long Lane Development LLC that Petitioner represented in the past as Petitioner’s “Former Client.”