Advisory Opinion No. 2020-50 Rhode Island Ethics Commission Advisory Opinion No. 2020-50 Approved: December 8, 2020 Re: Richard Keene QUESTION PRESENTED: The Petitioner, a member of the North Smithfield Planning Board, a municipal appointed position, who in his private capacity is the President and a Director of the North Smithfield Heritage Association, a non-profit organization, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Planning Board’s discussions and vote concerning an application filed by a member of the North Smithfield Heritage Association Board of Directors. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the North Smithfield Planning Board, a municipal appointed position, who in his private capacity is the President and a Director of the North Smithfield Heritage Association, a non-profit organization, is prohibited by the Code of Ethics from participating in the Planning Board’s discussions and vote concerning an application filed by a member of the North Smithfield Heritage Association Board of Directors. The Petitioner is a member of the North Smithfield Planning Board (“Planning Board”). In his private capacity the Petitioner serves on the Board of Directors and as the President of the North Smithfield Heritage Association (“NSHA”), a non-profit organization founded in 1970 that works to preserve and promote the culture, heritage and history of North Smithfield. The NSHA’s members collect and preserve documents, photographs and artifacts, as well as preserve historic town buildings and locations. The Petitioner represents that the NSHA, which has more than 200 members, is an entirely volunteer organization and that no one receives any remuneration or compensation for serving as an officer or director. The Petitioner states that, in order to fulfill its mission, the NSHA raises money from, among other sources, annual membership dues, donations, rental fees collected from one of the three historic buildings maintained by the NSHA, and grants awarded to it by the Town of North Smithfield. The Petitioner represents that before the Planning Board for review is an application filed by a fellow member of the NSHA Board of Directors relative to the building of a solar project. Given this set of facts, the Petitioner seeks guidance from the Ethics Commission regarding whether the Code of Ethics prohibits him from participation in the Planning Board’s discussions and vote relative to the aforementioned solar project application. 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 his 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), a public official must recuse from participation in any matter if his business associate appears or presents evidence or arguments before the public official’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 determined that those persons who are fellow officers in an organization, including non-profit organizations, 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 to the running of the organization 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., a non-profit corporation, and the existence of a financial component in the bookstore’s operations 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) Here, based on the Petitioner’s representations, the relevant provisions of the Code of Ethics, and the application of prior advisory opinions to the instant question presented, it is the opinion of the Ethics Commission that, given the existence of a financial component in the functions and operations of the NSHA, the Petitioner and his fellow NSHA Board of Directors member are business associates. Therefore, the Petitioner is required to recuse from participating in Planning Board discussions and voting relative to his fellow Board of Directors member’s solar project application. Notice of recusal shall be filed consistent 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(3) § 36-14-5(a) § 36-14-5(d) § 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. 2018-30 A.O. 2014-3 Keywords Business Associate Recusal