Advisory Opinion No. 2019-28 Rhode Island Ethics Commission Advisory Opinion No. 2019-28 Approved: April 23, 2019 Re: Helen Anthony QUESTION PRESENTED : The Petitioner, a member of the Providence City Council, a municipal elected position, who in her private capacity is an attorney with Handy Law, LLC, requests an advisory opinion regarding what limitations, if any, the Code of Ethics places upon her in carrying out her public duties, given that Handy Law, LLC represents the City of Providence and other clients before various Providence municipal agencies. RESPONSE : It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Providence City Council, a municipal elected position, who in her private capacity is an attorney with Handy Law, LLC, is prohibited by the Code of Ethics from participating in City Council matters in which her employer, her business associate, and/or any representative of her business associate appear s , and is further prohibited from participating in City Council matters which financially impact her employer and/or her business associate. The Petitioner was elected to the Providence City Council ( “ City Council”) in November of 2018. She represents that, in her private capacity, she is an associate attorney with Handy Law, LLC ( “ Handy Law”), a law firm providing counsel on energy, environmental, real estate, dispute resolution and business matters . [1] The Petitioner represents that she and Seth Handy, Esq. ( “Mr. Handy ”) are the only attorneys in the firm , with Mr. Handy being the sole principal. The Petitioner seeks the guidance of the Ethics Commission regarding what limitations, if any, the Code of Ethics places upon her in carrying out her public duties, given Handy Law’s representation of various clients, including the City of Providence ( “ City”) , as described below. City’s Implementation of the Rhode Island Small Cell Siting Act The Petitioner explains that in 2017 the Legislature passed the Rhode Island Small Cell Siting Act ( “ Act”) , which specifies how local authorities may regulate the collocation of small wireless facilities and small wireless facility networks. Subsequently, the City of Providence (“City”), through the City Solicitor and the Department of Public Works (“DPW”), engaged Handy Law to assist with the development of rules and procedures for the implementation of the Act , and with other Act - related matters such as a Request for Information on how the small cells are to be attached to street lights, a Request for Proposal for a pilot implementation program , and compliance with federal guidelines. During telephone conversations with Commission staff, Mr. Handy and the Petitioner state d that all Act-related representation has been, and will continue to be, performed solely by Mr. Handy and does not require any action by the City Council. However, in the event that Mr. Handy was ever required to appear before the City Council, the Petitioner states that she would recuse from participation in the matter . Lastly, the Petitioner informs that she has not and will not receive any proceeds outside of her set salary for Mr. Handy’s Act-related representation . Under the Code of Ethics, a public official is prohibited from using her public office or confidential information received through her public office to obtain financial gain for herself, her family member, her business associate, or any person by which she is employed or whom she represents. R .I. Gen. Laws § 36-14-5(d). Additionally, a public official must recuse from participation when her business associate or employer appears or presents evidence or arguments before her state or municipal agency. Commission Regulation 520-RICR-00-00-1.2.1(A)(2) Additional Circumstances Warranting Recusal (36-14-5002) ( “ Regulation 1.2.1”); section 36-14-5(f). Finally, a public official shall not have any interest, financial or otherwise, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of her duties or employment in the public interest. Section 36-14-5(a). A substantial conflict of interest exists if a public official has reason to believe or expect that she, any person within her family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Here, based upon the Petitioner’s representations, the review of prior advisory opinions and the relevant provisions of the Code of Ethics, it is the opinion of the Ethics Commission that because the Petitioner is employed by Handy Law, she is required to recuse from City Council matters in which Mr. Handy appears or which may financially impact Handy Law. See A.O. 2011-47 (opining that a member of the Rhode Island Board of Governors for Higher Education was required to recuse from discussion and voting relative to contract negotiations involving his employer); A.O. 2009-1 (opining that a member of the Scituate Town Council was required to recuse from matters before the Town Council concerning school related issues involving the interests of his employer which provide d busing services to the Scituate School Department). Recusal shall be pursuant to section 36-14-6 of the Code of Ethics. EDF Renewables Distributed Solutions Representation The Petitioner states that Handy Law provides legal services to EDF Renewables Distributed Solutions (“EDF Renewables”), a renewable energy developer, with regard to its development efforts of a solar energy project on property owned by the City and controlled by the Providence Water Supply Board. Similar to the facts presented above, all EDF Renewables-related representation has been, and will continue to be, performed solely by Mr. Handy . The Petitioner further states that Mr. Handy’s representation does not require any action by the City Council because negotiations and discussions on behalf of EDF Renewables are conducted with the Providence Water Supply Board . However, in the event that Mr. Handy was ever required to appear before the City Council, the Petitioner states that she would recuse from participation in the matter. Again, the Petitioner informs that she has not and will not receive any proceeds for such representation outside of her set salary. Here, the Commission applies the same analysis for EDF Renewables as it did above, pertaining to Handy Law’s representation of the City relative to the Act . Accordingly, based upon the Petitioner’s representations, the review of prior advisory opinions and the relevant provisions of the Code of Ethics, it is the opinion of the Ethics Commission that because the Petitioner is employed by Handy Law, she is required to recuse from City Council matters in which Mr. Handy appears or which may financially impact Handy Law. Recusal shall be pursuant section 36-14-6 of the Code of Ethics. Thayer Street District Management Authority Representation The Petitioner states that Handy Law represents Thayer Street District Management Authority ( “ TSDMA ”), a private organization comprised of Brown University and all Thayer Street businesses. The Petitioner explains that she has in the past provided legal services to TSDMA in her capacity as an associate at Handy Law. She represents that TSDMA is proposing a zoning change to the Thayer Street area, and the City is organizing a community meeting in that regard, adding that Handy Law does not represent TSDMA on the proposed zoning amendment. She explains that she was initially asked to chair the community meeting because Thayer Street is in the Ward she represents as a member of the City Council; however, she intends to recuse from chairing and/or participating in the meeting . The Code of Ethics defines business associates as individuals or entities joined together to “achieve a common financial objective.” Section 36-14-2(3). 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. See, e.g. , A.O. 2015-12 ( opining that ongoing handyman work for a private individual, which was reasonably foreseeable to continue, constituted a business associate relationship); A.O. 2011-45 (opining that an ongoing accountant-client and landlord-tenant relationship between a North Smithfield Town Council member and an architect constituted a business associate relationship). The Commission has consistently determined that the attorney-client relationship constitutes a “ business associate” relationship as that term is defined in the Code of Ethics. See, e.g. , A.O. 2010-47; A.O. 2010-33; and A.O. 2009-23. Here, because the Petitioner has provided, and may provide in the future, legal services to TSDMA under the contract, she is a business associate of TSDMA . Therefore, the Code of Ethics requires the Petitioner to recuse from any City Council matter in which TSDMA or its representative appears, as well as from any City Council matter that may financially impact TSDMA . Recusal shall be pursuant section 36-14-6 of the Code of Ethics. Rhode Island Streetlight Management Representation Finally, the Petitioner states that Handy Law has long represented the Partnership for Rhode Island Streetlight Management (“PRISM”), a non-profit organization which provides streetlight management and equipment upgrades to the City . The Petitioner explains that Handy Law’s representation of PRISM include s the preparation of agreements regarding streetlight acquisition and management services . The Petitioner states that she has in the past provided, and may provide in the future, legal research and other legal services t o PRISM . Here, because the Petitioner has provided, and may provide in the future, legal services to PRISM, she is a business associate of PRISM. Therefore, consistent with the above-analysis relative to Handy Law’s representation of TSDMA, the Code of Ethics requires the Petitioner to recuse from any City Council matter in which PRISM or its representative appears, as well as from any City Council matter that may financially impact PRISM. Recusal shall be pursuant section 36-14-6 of the Code of Ethics. Given that some of the facts as presented by the Petitioner are too broad for the Ethics Commission to provide specific guidance, this advisory opinion sets forth some general guidance for the Petitioner. Particularly, the Petitioner is prohibited by the Code of Ethics from participating in City Council matters in which her employer, Handy Law; her business associate s, TSDMA and PRISM; and/or any of their representative s appear, and is further prohibited from participating in City Council matters which financially impact her employer and/ or her business associate s . The Petitioner is advised to seek additional guidance from the Ethics Commission as more specific questions regarding potential conflicts of interest arise. 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) § 36-14-6 § 36-14-7(a) 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) Related Advisory Opinions : A.O. 2015-12 A.O. 2011-47 A.O. 2011-45 A.O. 2010-47 A.O. 2010-33 A.O. 2009-23 A.O. 2009-1 Keywords : Private Employment Business Associate [1] https://handylawllc.com/ (last accessed April 16, 2019).