Advisory Opinion No. 2021-22

Rhode Island Ethics Commission

Advisory Opinion No. 2021-22

Approved: March 16, 2021

Re: Tom Furey

QUESTION PRESENTED:

The Petitioner, the Chairman of the Rhode Island Contractors Registration and Licensing Board (“CRLB”), a state appointed position, requests an advisory opinion regarding whether he is prohibited by the Code of Ethics from participating in a matter currently pending before the CRLB, given that the appellant in said matter hired the Petitioner to perform work on the property that is the subject of the appeal.

RESPONSE:

It is the opinion of the Ethics Commission that the Petitioner, the Chairman of the Rhode Island Contractors Registration and Licensing Board (“CRLB”), a state appointed position, is not prohibited by the Code of Ethics from participating in a matter currently pending before the CRLB wherein the appellant in said matter hired the Petitioner to perform work on the property that is the subject of the appeal.  However, in consideration of the appearance of impropriety that would result from his participation, the Petitioner is advised to recuse from so participating.

The Petitioner is the Chairman of the Rhode Island Contractors Registration and Licensing Board (“CRLB”).  He states that the CRLB oversees contractor and homeowner disputes on appeal.  The Petitioner further states that the CRLB is soon expected to hear an appeal in the case of CRLB vs. Steven Gianlorenzo,[1] d/b/a Gianlorenzo & Sons, Construction (“appeal”).  The Petitioner explains that Steven Gianlorenzo (“Mr. Gianlorenzo” or “Appellant”) is appealing the amount of a fine imposed by the CRLB staff following a decision in favor of a homeowner who had filed a complaint against Mr. Gianlorenzo as a result of work performed by Mr. Gianlorenzo at the request of the homeowner on the homeowner’s property.  The Petitioner states that, in his private capacity he is the owner of Furey Roofing, and that he was hired by Mr. Gianlorenzo to install a roof on the property that is the subject of the appeal.  The Petitioner adds that, to the best of his knowledge, no part of the dispute between the homeowner and Mr. Gianlorenzo involves the roofing work performed by the Petitioner.  The Petitioner represents that he performed his work on the subject property in 2019 and was paid in full for that work by Mr. Gianlorenzo on August 22, 2019.  He adds that he does not anticipate any future business relationship with Mr. Gianlorenzo, and that he would be able to participate in the matter in which Mr. Gianlorenzo is the Appellant in a fair and impartial matter.  It is in the context of these facts that the Petitioner seeks guidance from the Ethics Commission regarding whether he is prohibited from participating in the matter currently before the CRLB in which Mr. Gianlorenzo is the appellant.

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.  R.I. Gen. Laws § 36-14-5(a).  A substantial conflict of interest exists if a public official has reason to believe or expect that he, any person within his family, 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 further 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).  Additionally, under the Code of Ethics, a public official must recuse himself from participation in a matter when his business associate or employer, or a person authorized by his business associate or employer, appears or presents evidence or arguments before his state agency.  Commission Regulation 520-RICR-00-00-1.2.1(A)(2)&(3) Additional Circumstances Warranting Recusal (36-14-5002) (“Regulation 1.2.1”).  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).    

Here, based on the Petitioner’s representations that he has been paid in full for the work he performed on the property that is the subject of the appeal, and that the Petitioner’s work is not the subject of the dispute which led to the appeal, there is no reason to believe or expect that the Petitioner will be personally financially impacted were he to participate in hearing the appeal.  For that reason, the focus of the following analysis will be the relationship between the Petitioner and Mr. Gianlorenzo.

In past advisory opinions, the Ethics Commission has required a public official to recuse from consideration of a matter if the public 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). 

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, and/or whether there exists an anticipated future relationship.  For example, in Advisory Opinion 2021-11, the Ethics Commission opined that a member of the State Housing Appeals Board (“SHAB”) was not prohibited by the Code of Ethics from participating in a matter before the SHAB in which the appellant was represented by legal counsel who once provided legal services to the petitioner.  The circumstances were such that the attorney-client relationship between the appellant’s legal counsel and the petitioner had ended some four years prior, with the petitioner having paid the attorney in full for all legal services provided to her, and with no expectation that she would require the attorney’s services in the future.   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 had been paid in full, and that 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 the 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 business relationship between the Appellant and himself ended in 2019. He states that the Appellant has paid him in full for the roofing services he provided.  He further states that he does not anticipate any occasion for which he might engage in a future business relationship with the Appellant.  The Petitioner is a former business associate of the Appellant, which means that the Code of Ethics does not prohibit the Petitioner from participating in the CRLB’s consideration of the appeal.  That notwithstanding, public officials are advised by the Rhode Island Constitution to hold themselves to ethical standards that go beyond the legal requirements of the Code of Ethics by “adher[ing] to the highest standards of ethical conduct, respect[ing] the public trust and . . . avoid[ing] the appearance of impropriety[.]”  R.I. Const. art. III, sec. 7.  Accordingly, it is the opinion of the Ethics Commission that the Petitioner should not participate in the matter currently pending before the CRLB.  Although there is no current business association between the Petitioner and the Appellant, the Petitioner states that he performed work for the Appellant on the very property that is the subject of the appeal before the CRLB.  Were this a situation in which the CRLB would not be able to achieve a necessary quorum to hear the matter without the Petitioner’s participation, then perhaps the appearance of impropriety might be outweighed by the necessity of the Petitioner’s participation.  Where no facts have been presented to suggest that is the case, the Petitioner is advised to recuse from participation in Mr. Gianlorenzo’s appeal, 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)

Constitutional Authority:       
R.I. Const., art III, sec. 7
       
                       
Related Advisory Opinions:              
A.O. 2021-11 
A.O. 2016-45 
A.O. 2013-21 
A.O. 2007-5   
A.O. 2005-64 

Keywords:      
Appearance of Impropriety    
Business Associate    

[1] The Petitioner states that Steven Gianlorenzo is both a former member and a former employee of the CRLB.