Advisory Opinion No. 2018-11 Rhode Island Ethics Commission Advisory Opinion No. 2018-11 Approved: February 27, 2018 Re: Anthony DeSisto QUESTION PRESENTED: The Petitioner, the Solicitor for the Town of Tiverton, a municipal appointed position, requests an advisory opinion regarding whether he may serve as legal counsel to the Tiverton Planning Board relative to a particular land development project, given that in his private capacity as an attorney the Petitioner previously represented a client in the defense of a lawsuit brought by the developer. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Solicitor for the Town of Tiverton, a municipal appointed position, is not barred by the Code of Ethics from serving as legal counsel to the Tiverton Planning Board relative to a particular land development project, notwithstanding that in his private capacity as an attorney the Petitioner previously represented a client in the defense of a lawsuit brought by the developer. The Petitioner is the Solicitor in the Town of Tiverton (“Tiverton”). In his capacity as Solicitor, the Petitioner advises the Tiverton Planning Board (“Planning Board”) when it sits in its quasi-judicial capacity deciding whether to approve or deny applications for subdivisions and land development projects in Tiverton. The Petitioner notes that, as legal counsel, he merely provides legal advice as requested and that he does not take a position or have a vote in the Planning Board’s decision to approve or reject an application. The Petitioner maintains a private law practice, and in this private capacity he previously represented clients regarding a land development project on land they owned in the Town of Warren. These clients were sued by Thomas Chace (“Chace”), who was the realtor and potential developer for the Petitioner’s clients’ land. The Petitioner defended his clients in the lawsuit which was eventually settled by a consent order entered on December 17, 2014. The Petitioner states that there are a few remaining issues between the parties regarding the implementation of the consent order, but that it is for the most part resolved. The Petitioner represents that, unrelated to the aforementioned litigation over the Warren property, Chace has recently filed a subdivision application for a land development project in Tiverton. This application will come before the Planning Board for review and approval, and Chace has raised the issue of whether the Petitioner has a conflict of interest given his prior, private representation of the defendants in Chace’s lawsuit. In light of this question, the Petitioner seeks guidance from the Ethics Commission as to whether the Code of Ethics requires his recusal from advising the Planning Board relative to Chace’s Tiverton project. 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). 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”). Here, the Petitioner represents that neither he nor his clients would be impacted in any way by the Planning Board’s decision-making relative to Chace’s land development in Tiverton. He notes that the property that was the subject of the lawsuit is located in a different town and is not impacted by Chace’s development project proposed in Tiverton. Accordingly, it is the opinion of the Rhode Island Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from serving as legal counsel to the Planning Board on matters relative to Chace’s Tiverton land development project. 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. 2007-5 Keywords : Business Associate