Advisory Opinion No. 2021-11

Rhode Island Ethics Commission

Advisory Opinion No. 2021-11

Approved: February 9, 2021

Re: Mary E. Meagher

QUESTION PRESENTED:

The Petitioner, a member of the State Housing Appeals Board, a state appointed position, requests an advisory opinion regarding whether she is prohibited by the Code of Ethics from participating in a matter currently before the State Housing Appeals Board in which the appellant is represented by legal counsel who once provided legal services to the Petitioner.          

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the State Housing Appeals Board, a state appointed position, is not prohibited by the Code of Ethics from participating in a matter currently before the State Housing Appeals Board in which the appellant is represented by legal counsel who once provided legal services to the Petitioner.          

The Petitioner is a member of the State Housing Appeals Board (“SHAB”), the function of which includes, but is not limited to, appellate review of decisions made by local municipal boards regarding applications relating to affordable housing plans.  She states that a matter has recently come before the SHAB in which the appellant is represented by Attorney John Kenyon (“Attorney Kenyon”).  The Petitioner, who in her private capacity is an architectural designer, explains that a lawsuit was filed in 2015 by an abutter against former clients of the Petitioner alleging error on the part of a local building official who had approved a building permit associated with a renovation project that the Petitioner had completed for her former clients.  The Petitioner further explains that she retained Attorney Kenyon in response to her having been served a subpoena relative to the lawsuit filed against her clients.  She represents that the lawsuit was ultimately withdrawn and that in March of 2016 she sent a final payment to Attorney Kenyon for his services.  The Petitioner adds that she has had no contact with Attorney Kenyon since 2016 and, despite Attorney Kenyon having represented her ably, she does not anticipate any occasion for which she might require his services going forward.  It is in the context of these events that the Petitioner seeks the advice of the Ethics Commission regarding whether she is prohibited from participating in the matter currently before the SHAB for which Attorney Kenyon represents the appellant.

Under the Code of Ethics, a public official must recuse herself from participation in a matter when her business associate or employer, or a person authorized by her business associate or employer, appears or presents evidence or arguments before her state agency.  Commission Regulation 520-RICR-00-00-1.2.1(A)(2)&(3) Additional Circumstances Warranting Recusal (36-14-5002).  A business associate is defined as “a person joined together with another person to achieve a common financial objective.”  R.I. Gen. Laws § 36-14-2(3).  Additionally, a public official may not participate in any matter in which she has an interest, financial or otherwise, that 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 an official has reason to believe or expect that she, any person within her family, her business associate or her employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity.  Section 36-14-7(a).  The Code of Ethics further prohibits a public official from using her public office or confidential information received through her public office to obtain financial gain for herself, her family, her business associate, or any business by which she is employed or which she represents.  Section 36-14-5(d).   

In past advisory opinions, the Ethics Commission has required a public official to recuse from consideration of a matter if the official had an ongoing business relationship with an individual or entity appearing before his or her public body.  See A.O. 2016-45 (opining that a member of the Tiverton Planning Board (“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, often referred work and clients to each other, and would continue to refer work and clients to each other); A.O. 2005-64 (opining that a member of the Burrillville Redevelopment Agency (“Agency”) could not participate in discussions or votes on matters coming before the Agency regarding a nonprofit developer’s request for approval of a project, given that the petitioner was a partner in an accounting firm that provided accounting services to that developer on a continuing basis).  Also, the Ethics Commission has consistently determined that an ongoing attorney-client relationship constitutes a business association for purposes of the Code of Ethics.  See e.g. A.O. 2010-47; A.O. 2009-23; A.O. 2007-54; A.O. 2003-17. 

However, while the Code of Ethics clearly prohibits a public official from participating in matters directly affecting his or her current business associate, the Ethics Commission has permitted a public official to participate in matters involving or impacting a former business associate, assuming no other conflicts were present.  In determining whether a relationship between two parties constitutes an ongoing business association, the Ethics Commission examines, among other things, whether the parties are conducting ongoing business transactions, have outstanding accounts, or there exists an anticipated future relationship.  For example, in Advisory Opinion 2019-60, the Ethics Commission opined that the Building Official for the Town of New Shoreham, who in his private capacity owned and operated a house watch service, was not required to recuse from matters that involved or financially impacted his former business associates, provided that any agreements for services between the petitioner and former clients had been severed prior to the petitioner performing any action in his public capacity in matters involving such former clients.  The Ethics Commission further opined that all home watch services for former clients were required to have ceased prior to the petitioner performing any action in his public capacity in matters involving those former clients, with no outstanding fees due or refunds owed between the parties.  Finally, there could be no understanding or expectation that the business association between the petitioner and any former client would resume once the petitioner had completed his work as Building Official for that individual.  See also 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 were paid in full, and there was no reasonable likelihood of reestablishing an attorney-client relationship in the foreseeable future); A.O. 2007-5 (opining that a Smithfield Town Council member’s prior attorney-client relationship with an individual who sought legal advice related to his property that abutted the Slacks Reservoir dam did not prohibit that petitioner from participating in the Town Council’s consideration of a matter related to the release of funds to repair the Slacks Reservoir dam, given that the attorney-client relationship, during which the client had not been charged, had ended more than a year prior with no plans for future representation.

In the present matter, the Petitioner represents that the attorney-client relationship between Attorney Kenyon and herself ended in 2016. She states that the matter for which she had retained Attorney Kenyon’s services was unrelated to the jurisdiction of the SHAB and that Attorney Kenyon has been paid in full for the services he provided to her.  She further states that she does not anticipate any occasion for which she might require Attorney Kenyon’s services in the future.  Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited from participating in a matter currently before the SHAB in which the appellant is represented by Attorney Kenyon.

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. 2019-60 
A.O. 2016-45 
A.O. 2013-21 
A.O. 2009-23 
A.O. 2007-54 
A.O. 2007-5   
A.O. 2005-64 
A.O. 2003-17 

Keywords:
Business Associate