Advisory Opinion No. 2020-47 Rhode Island Ethics Commission Advisory Opinion No. 2020-47 Approved: December 8, 2020 Re: Jacob Brier QUESTION PRESENTED: The Petitioner, a member of the Barrington Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in discussions and voting relative to a complaint filed by a Barrington resident against the President and the former Vice President of the Barrington Town Council, given that the Petitioner had served as a fellow director of a non-profit organization with two of the witnesses who co-signed said complaint. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Barrington Town Council, a municipal elected position, is not prohibited by the Code of Ethics from participating in discussions and voting relative to a complaint filed by a Barrington resident against the President and the former Vice President of the Barrington Town Council, notwithstanding that the Petitioner had served as a fellow director of a non-profit organization with two of the witnesses who co-signed said complaint. The Petitioner is a member of the Town Council (“Town Council”) in the Town of Barrington (“Town” or “Barrington”). He was elected to this position in 2018, and his term ends in December of 2022. The Petitioner states that pending before the Town Council is a complaint (“Complaint”) filed by a Barrington resident pursuant to the Town’s “Anti-Harassment/Discrimination Policy for Town Officials, Board/Commission Members and Volunteers” against the Town Council’s President and the former Vice President.[1] The Petitioner represents that, to offer support to the complainant, a few Town residents who were present at the time of the alleged incident co-signed the Complaint as witnesses. He further represents that two of those witnesses are directors (“Directors”) of a non-profit organization called Patefactio Productions, formerly known as Empathy Productions (“Organization”), of which the Petitioner was also a director at the time the Complaint was filed. The Petitioner states that said Organization is a creative community art organization that was established in September of 2020 by the Petitioner and the Directors as a result of their collaboration on community activities. These activities included the creation of a film which required them to retain the services of a videographer and a security guard to film a protest. The Petitioner states that, at that time, he opened a bank account for the Organization for the payment of its expenses. The Petitioner represents that he was not aware that the Organization’s Directors would be signing the Complaint. He states that he was notified by the Town Council President about the need for the Petitioner to recuse based on a business associate relationship, at that time, between the Petitioner and the Directors. The Petitioner states that, in order to fulfil his obligations as a member of the Town Council and to avoid any potential conflict of interest, he removed himself as a director of the Organization, effective November 18, 2020. He represents that, upon his removal as a director, the name of the Organization was changed from Empathy Productions to Patefactio Productions, and that he has since closed the bank account he had created for the Organization. He further represents that the Organization has no current or ongoing financial commitments for revenue or expenses, and that the Organization is not a source of income for the current directors, nor was it ever a source of income for the Petitioner. The Petitioner states that he has no intention of returning to any leadership role with the Organization, nor of creating or joining another entity with the Directors. He does note, however, that in the future he may assist the Organization in a strictly ad hoc volunteer capacity. Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether the Code of Ethics prohibits him from participating in discussions and voting as a member of the Town Council relative to the Complaint. 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. See 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, his 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 business by which he is employed or which he represents. Section 36-14-5(d). Finally, under Commission Regulation 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002), the Petitioner must recuse from participation in any matter if his business associate appears or presents evidence or arguments before the Petitioner’s state or municipal agency. 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). In prior advisory opinions, the Ethics Commission has found that those who are fellow officers or directors in an organization are “business associates.” Specifically, the Ethics Commission has opined that, while an organization may pursue various objectives that are not financial, the existence of a financial component is sufficient to qualify an official and his fellow officers as business associates. See, e.g., A.O. 2018-30 (opining that a member of the Coventry Town Council was prohibited by the Code of Ethics from participating in the Town Council’s discussions and decision-making relative to the reappointment of the Coventry Municipal Court Judge, given that both were members of the Board of Directors of Gabriel’s Trumpet Christian Book Store, Inc., and the existence of a financial component was sufficient to qualify the fellow Board members as business associates); A.O. 2014-3 (opining that a member of the Tiverton Board of Canvassers, who was also the Vice Chair of the Tiverton Democratic Town Committee, could not participate in Board of Canvassers matters that involved the Tiverton Democratic Town Committee or its other officers) While the Code of Ethics clearly prohibits the Petitioner from participating in matters directly affecting his current business associates, the recusal provisions of the Code of Ethics do not apply to matters that involve or impact the Petitioner’s former business associates, provided that the business relationship between the Petitioner and the other party has ended and there is no specific future business relationship anticipated between the parties. See, e.g., A.O. 2016-29 (opining that the Chairman of the West Warwick Arctic Village Redevelopment Agency was required to recuse from any matters before his agency that involved or financially impacted his current business associates, but was not required to recuse from matters that involved or impacted his prior business associates, provided that there was 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 had been paid in full; and there was no reasonable likelihood of reestablishing an attorney/client relationship in the foreseeable future). Here, the Petitioner represents that he is no longer a director of the Organization; that he has closed the bank account previously used by the Organization and on which his name had been listed; that there are no current or ongoing financial commitments for revenue or expenses; and that the Organization is not a source of income for its current directors, nor was it ever a source of income for the Petitioner. Based on the Petitioner’s representations, the applicable provisions of the Code of Ethics, and prior advisory opinions issued, it is the opinion of the Ethics Commission that the business associate relationship between the Petitioner and his former fellow directors has ended. Thus, the Petitioner is not required by the Code of Ethics to recuse from participating in discussions and voting related the Complaint, nor is he required to recuse if the Directors appear before the Town Council relative to the Complaint. The Petitioner is encouraged to seek additional advice from the Ethics Commission in the future if any of the circumstances change. 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) § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) Related Advisory Opinions: A.O. 2018-30 A.O. 2016-29 A.O. 2014-3 A.O. 2013-21 Keywords: Business Associate Recusal [1] The Petitioner represents that the Town Council Vice President against whom the complaint was filed was not reelected in November of 2020.