Advisory Opinion No. 2018-55 Rhode Island Ethics Commission Advisory Opinion No. 2018-55 Hearing Date: December 11, 2018 Re: Derek M. Silva QUESTION PRESENTED: The Petitioner, a member of the Rhode Island State Labor Relations Board, a state appointed position, who is also a Lieutenant with the Providence Fire Department, a municipal employee position, and the President and Legislative Agent for Providence Fire Fighters Local 799 of the International Association of Fire Fighters, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in discussions and decision-making relative to Labor Relations Board matters involving parties other than Providence Fire Fighters Local 799 and its members, when such other parties are represented by an attorney who has in the past represented or is representing Providence Fire Fighters Local 799 or its members on unrelated matters. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Rhode Island State Labor Relations Board, a state appointed position, who is also a Lieutenant with the Providence Fire Department, a municipal employee position, and the President and Legislative Agent for the Providence Fire Fighters Local 799 of the International Association of Fire Fighters, is not prohibited by the Code of Ethics from participating in discussions and decision-making relative to Labor Relations Board matters involving parties other than Providence Fire Fighters Local 799 and its members, when such other parties are represented by an attorney who has in the past represented or is representing Providence Fire Fighters Local 799 or its members on unrelated matters. The Petitioner states that he is a member of the Rhode Island State Labor Relations Board (“Board”). The Petitioner explains that, by statute, the Board has seven (7) members: three (3) representatives of labor; three (3) representatives of management; and one (1) representative of the public, and that he was appointed to serve as a representative of labor. R.I. Gen. Laws § 28-7-4. He further informs that the Board’s jurisdiction is limited to labor matters involving municipal, state, and quasi-state employers. Among other things, the Board reviews claims by local union members alleging unfair labor practices by their employers. In his private capacity, the Petitioner is employed as a Lieutenant with the Providence Fire Department and is the President and Legislative Agent for the Providence Fire Fighters Local 799 (“Local 799”) of the International Association of Fire Fighters (“IAFF”). The Petitioner states that all Providence firefighters, with the exception of the administrative officers, are members of Local 799. He further explains that when the Board reviews matters involving Local 799 firefighters, such firefighters are always represented by a Local 799 agent or attorney. The Petitioner states that, when needed, Local 799 retains an attorney to represent either Local 799 or individual members thereof. He explains that because the pool of attorneys in the state who handle labor-related matters involving local unions and/or their members is very limited, it is common for different local unions to retain the same attorney to represent them and their members before the Board. Specifically, the Petitioner notes that Attorney Elizabeth Wiens is expected to appear before the Board to represent a party other than Local 799 or its members on a matter unrelated to Local 799 or its members. The Petitioner states that he has never been, is not currently, and does not anticipate that he will be represented by Attorney Wiens. The Petitioner recently requested and received an advisory opinion regarding what limitations the Code of Ethics placed upon his participation in Board matters involving firefighters across the state, given that he was then the Vice President and Legislative Agent for Local 799. A.O. 2018-27. The Ethics Commission determined that the Petitioner was prohibited by the Code of Ethics from participating as a Board member in matters that financially impact Local 799 or for which a representative or legal counsel for Local 799 appears or presents evidence or argument. However, the Commission opined that the Code of Ethics did not prohibit his participation in Board matters involving a different local union or its firefighter members. Additionally, the Minutes approving the advisory opinion reflect that the Petitioner sought clarification regarding whether he would have to recuse from participating in Board matters every time an attorney who represents Local 799 and other locals appear before the Board. The Petitioner was verbally advised by the Commission that he would be required to recuse only when an attorney representing Local 799 appears before the Board. The Petitioner states that it has been suggested to him that the language in A.O. 2018-27 and the Minutes from the meeting at which that advisory opinion was rendered could conceivably be interpreted to prohibit him from participating in all matters in which an attorney who has also represented or is representing Local 799 or its members appears before the Board, even in cases where such attorney is neither representing the interests of Local 799 or its members at the time, and where the matter on which said attorney is appearing does not financially impact Local 799. The Petitioner has, therefore, returned to the Commission for clarification of this issue. 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. Section 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 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 before the state or municipal agency of which he is a member or by which he is employed. Section 36-14-5(f); Commission Regulation 36-14-5002(a)(2).[1] 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 previous 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 was prohibited from participating in the Planning Board’s discussions and voting relative to a matter in which her business associate appeared as an expert witness, given that they had worked together professionally in the past on projects and often refer work and clients to each other). The Ethics Commission has consistently opined that a public official is a business associate of the entity for which he serves either as a member of the Board of Directors or in another leadership position that permits him to affect the financial objectives of the organization. See A.O. 2002-6 (advising that members of the Westerly Town Council who held leadership positions in the Chamber of Commerce were prohibited from participating in matters involving the Chamber of Commerce since they were business associates). Additionally, the Ethics Commission has found that the attorney-client relationship creates a business association for purposes of the Code. See, e.g., A.O. 2007-5 (stating that “[t]he Commission has long held that an attorney and his or her clients are considered to be business associates as that term is defined in the Code of Ethics”). It is worth noting that 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. See A.O. 2002-61 (concluding that a Westerly Town Councilor may participate in matters involving Lewiss Law Associates provided that there is no ongoing attorney client relationship between the petitioner and the law firm and there are no specific plans for representation in the near future). The Ethics Commission considered a fact pattern similar to the instant one in Advisory Opinion 2003-66, ultimately opining that a member of the Health Services Council (“HSC”) who in his private capacity was the President and Chief Executive Officer of St. Joseph Health Services of Rhode Island was not prohibited by the Code of Ethics from participating in matters where members of law firms, who served as either general counsel to St. Joseph Health Services or were engaged for legal services by it, represented applicants on a routine basis before the HSC. The Commission reasoned that law firms engaged as legal counsel for St. Joseph Health Services were business associates of St. Joseph Health Services. However, the mere fact that the petitioner was a business associate of St. Joseph Health Services did not make him a business associate of any of St. Joseph Health Services’ other business associates. Because the petitioner was not joined together with any of his employer’s business associates to achieve a common financial objective, under the Code of Ethics the petitioner was not considered to be a business associate of any law firm engaged by St. Joseph Health Services. Here, the Petitioner is a business associate of Local 799 because he holds a leadership position in that organization as its President and serves as its Legislative Agent. Furthermore, any current or anticipated attorney-client relationship between Local 799 and its attorney constitutes a business association between Local 799 and that attorney. However, although the Petitioner is a business associate of Local 799, he is not by extension a business associate of any and all of the attorneys hired by Local 799 to represent it or its members. Accordingly, based on the Petitioner’s above representations and a review of prior advisory opinions, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from participating in discussions and decision-making relative to Board matters involving parties other than Local 799 and its members when those other parties are represented by an attorney, such as Attorney Wiens, who has in the past represented or is representing Local 799 or its members on unrelated matters, provided that there is no business association, present or anticipated, between the Petitioner and that attorney. 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) § 36-14-7(a) Commission Regulation 36-14-5002 Other Related Authorities: § 28-7-4 Related Advisory Opinions: A.O. 2018-27 A.O. 2016-45 A.O. 2007-5 A.O. 2003-66 A.O. 2002-61 A.O. 2002-6 Keywords: Business Associate Private Employment [1] 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 36-14-5002 now corresponds to Regulation 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002).