Advisory Opinion No. 2018-22 Rhode Island Ethics Commission Advisory Opinion No. 2018-22 Approved: March 27, 2018 Re: John A. Beauregard QUESTION PRESENTED: The Petitioner, a member and President of the North Smithfield Town Council, a municipal elected position, requests an advisory opinion regarding whether he may participate in the Town Council’s discussions and voting relative to a solar farm project in North Smithfield, given that the Petitioner has previously provided parking lot paint striping for a business owned by the solar farm’s developer. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member and President of the North Smithfield Town Council, a municipal elected position, may participate in the Town Council’s discussions and voting relative to a solar farm project in North Smithfield, notwithstanding that the Petitioner has previously provided parking lot paint striping for a business owned by the solar farm’s developer. The Petitioner is the President of the North Smithfield Town Council (“Town Council”). The Petitioner notes that in his private capacity he is the owner of New England Striping, a business that installs paint striping on parking lots throughout the state of Rhode Island. Recently, a company known as Green Energy, owned by Mark DePasquale (“DePasquale”), has proposed the installation of a solar farm in North Smithfield. It is expected that, as part of the project, Green Energy will come before the Town Council to seek amendments to the zoning ordinance as well as a tax stabilization agreement. The Petitioner states that his business, New England Striping, was previously contracted by another of DePasquale’s companies, known as Green Development, to install paint striping in two different parking lots. In particular, the Petitioner was paid $375 to install parking lot paint striping on August 28, 2015, and was again hired and paid $375 to install paint striping on a different lot on July 21, 2017. Given this past work for DePasquale, the Petitioner asks whether the Code of Ethics prohibits his participation in the Town Council’s consideration of matters relating to DePasquale’s solar farm 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). 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 her 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”). However, while the Code of Ethics clearly prohibits a public official from participating in matters directly affecting his current business associate, the Ethics Commission has permitted public officials to participate in matters involving or impacting a former business associate or employer, provided that the business relationship between the 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). In determining whether a relationship between two parties constitutes an ongoing business association, the Ethics Commission examines the nature of the association and the scope of the business dealings between the parties, and looks to, among other things, whether the parties are conducting ongoing business transactions, have outstanding accounts, or there exists an anticipated future relationship. A.O. 2015-49 (opining that a Zoning Official who had done private electrical work for the Fort Adams Trust in the past, and who planned to bid on future work, was a business associate of the Trust under the Code of Ethics). Here, the Petitioner states that he has, in the past, performed small contracts for DePasquale. At the time that the Petitioner was under contract to perform paint striping for a DePasquale entity, he and DePasquale were considered “business associates” as that term is used in the Code of Ethics. However, the Petitioner represents that he has no current or anticipated future contracts with a DePasquale entity. Furthermore, in a telephone conversation with the Commission staff the Petitioner affirmatively represented that in order to avoid any appearance of impropriety he will decline any future paint striping contracts with a DePasquale entity, if offered. Under these circumstances, there is no ongoing business association and the Petitioner is not required by the Code of Ethics to recuse from the Town Council’s discussions and voting relative to the solar farm being proposed by DePasquale and Green Energy. 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) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5002 Commission Regulation 36-14-6001 Related Advisory Opinions: A.O. 2016-45 A.O. 2016-29 A.O. 2015-49 A.O. 2013-21 A.O. 2005-64 Keywords: Business Associate