Advisory Opinion No. 2018-53 Rhode Island Ethics Commission Advisory Opinion No. 2018-53 Approved: November 20, 2018 Re: Dean Wagner QUESTION PRESENTED: The Petitioner, a member of the Jamestown Zoning Board of Review, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in discussions and voting on Zoning Board matters in which an applicant or objector is represented by an attorney from the law firm at which the Petitioner’s spouse is employed as a legal assistant. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Jamestown Zoning Board of Review, a municipal appointed position, may participate in discussions and voting on Zoning Board matters in which an applicant or objector is represented by an attorney from the law firm at which the Petitioner’s spouse is employed as a legal assistant, because none of the compensation received by the Petitioner’s spouse in the course of her employment is dependent upon a particular outcome in any case, and the Petitioner’s spouse does not work on zoning matters. The Petitioner is a member of the Jamestown Zoning Board of Review (“Zoning Board”). He represents that his spouse is employed as a part-time legal assistant at Morneau & Murphy (“law firm”). The Petitioner states that Christian Infantolino (“Mr. Infantolino”), an attorney at the law firm, represents applicants and objectors before the Zoning Board on a regular basis. The Petitioner further states that to date, to avoid even the appearance of impropriety, he has recused from all Zoning Board matters in which Mr. Infantolino has represented an applicant or objector. The Petitioner represents that his spouse is a salaried employee, and that neither her salary nor any bonus that she might receive from her employment is dependent upon a particular outcome in any case. The Petitioner states that his spouse works for an estates and trusts attorney at the law firm who does not work on zoning matters or appear before the Zoning Board. The Petitioner’s spouse does not perform work on any matters handled by Mr. Infantolino.[1] Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if a public official has reason to believe or expect that he, any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). A “person within . . . his family” includes the official’s spouse. Section 36-14-2(1); Commission Regulation 36-14-5004(a)(2) (“Regulation 5004”).[2] “Business associates” are defined as individuals or entities joined together to “achieve a common financial objective.” Section 36-14-2(3). A public official is further prohibited from using his public office or confidential information received through his position to obtain financial gain, other than that provided for by law, for himself, a business associate or a family member. Section 36-14-5(d). Additionally, Commission Regulation 36-14-5002(a)(1)[3] requires a public official to recuse himself from participation when any person within his family appears or presents evidence or arguments before his state or municipal agency. Furthermore, Regulation 5004(b)(1) prohibits a public official from participating in any matter as part of his public duties if he has reason to believe or expect that any person within his family is a party to or participant in the same matter, or will derive a direct monetary gain or suffer a direct monetary loss, or obtain an employment advantage. The Ethics Commission has previously opined that a public official is not required to recuse from matters that may cause a financial impact upon his family member’s employer or business associate, as long as there is no corresponding financial impact upon the family member. See A.O. 2015-45 (opining that the Deputy Chief of Legal Services for the Public Utilities Commission was not prohibited by the Code of Ethics from working on a matter involving a utility company that was represented by her spouse’s law firm, based on the petitioner’s representations that her spouse would not perform any work on the matter nor appear before the Public Utilities Commission); A.O. 2008-69 (opining that a member of the Woonsocket Zoning Board of Review was permitted to participate in discussion and voting on a petition for a variance brought by CVS, notwithstanding the fact that the petitioner’s sister was employed as an accounting analyst with CVS, since his sister would not be financially impacted by the Zoning Board of Review’s decision regarding the petition); A.O. 2007-16 (opining that a member of the Johnston School Committee could participate in the Committee’s review of bills submitted by The Providence Center, a provider of special education services that employed the petitioner’s mother as an office assistant). Here, the Petitioner’s spouse is a salaried employee, and neither her salary nor any bonus she might receive from her employment is dependent upon a particular outcome in any case. The Petitioner’s spouse does not perform work on any matters handled by Mr. Infantolino. Consistent with the above-cited advisory opinions, under the facts as represented by the Petitioner, there is nothing to indicate that the Petitioner’s participation in discussions and voting on Zoning Board matters in which Mr. Infantolino represents an applicant or objector will have a direct financial impact upon the Petitioner or his spouse. Based on the above, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from participating in discussions and voting on Zoning Board matters in which Mr. Infantolino represents an applicant or objector. However, if circumstances should change such that it becomes reasonably foreseeable that his participation in such matters could result in financial impact upon his spouse, the Petitioner is encouraged to seek further guidance from this Commission and/or recuse from participation 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(1) § 36-14-2(3) § 36-14-5(a) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Commission Regulation 5002 Commission Regulation 5004 Related Advisory Opinions: A.O. 2015-45 A.O. 2007-16 A.O. 2008-69 Keywords: Family Financial Interest Nepotism [1] The Petitioner states that his spouse may occasionally greet one of Mr. Infantolino’s clients in the event she is covering for the receptionist at the law firm. [2] In May 2018, the Ethics Commission codified the Code of Ethics into the Rhode Island Code of Regulations (“RICR”), a uniform state code containing the rules and regulations of the various Rhode Island agencies. In order to do so, the Ethics Commission reformatted and renumbered the Code of Ethics. As a result, Regulation 5004 now corresponds to Regulation 520-RICR-00-00-1.3.1 Prohibited Activities – Nepotism (36-14-5004). [3] Commission Regulation 36-14-5002(a)(1) now corresponds to Regulation 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002).