Advisory Opinion No. 2000-29

Re: Anne T. Turilli, Esq.

QUESTION PRESENTED

The petitioner, a Special Assistant Attorney General, a state employee position, requests an advisory opinion regarding her participation in the review of transactions, including conversions, involving Lifespan Corporation, its affiliates or any other health care entity given that (1) her spouse’s law firm represents Lifespan on matters other than the merger, (2) a partner in her husband's law firm is a Director for Lifespan subsidiaries, and (3) she represented another health care entity when she worked in the private sector.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Special Assistant Attorney General, a state employee position, may participate in matters involving Lifespan provided that the petitioner’s spouse’s law firm does not represent Lifespan in those matters and because her spouse is not a partner in the law firm. However, if the petitioner’s spouse is or becomes a partner in the firm, and the firm regularly represents Lifespan on a variety of matters, she may not participate in conversion or other issues relative to Lifespan since it is reasonably foreseeable that by doing so she could financially impact her spouse and his business partners. The Code of Ethics would not prohibit the petitioner from participating in health care conversions relating to other entities provided that her spouse and/or his law firm is not representing such entities. Finally, nothing in the Code of Ethics prohibits the petitioner from participating in such matters as outlined simply because of her prior representation of Landmark Medical Center.

The petitioner represents that as a Special Assistant Attorney General she recently was assigned to the Health Care Conversion Team that addresses hospital conversions, health care conversions, and other health care related matters. Her role is to participate in reviews of conversions, affiliations, and mergers of hospital and health care entities in accordance with statutory and common law as well as to review product liability issues concerning health care facilities. The Attorney General’s office is currently reviewing a proposed merger between Lifespan Corporation and Care New England Health Systems, Inc. Lifespan consists of Rhode Island Hospital, The Miriam Hospital, Bradley Hospital, VNA of Rhode Island, Hospice of Rhode Island, Newport Hospital, South County Hospital, New England Medical Center, Lifespan Diversified Services and other entities, including foundations. Care New England Health Systems, Inc. consists of Women & Infants Hospital, Butler Hospital, and Kent County Memorial Hospital, as well as other entities.

The petitioner advises that her husband is currently an associate in private law practice. She advises that he may become partner to that firm. The firm performs legal work for Lifespan Corporation on a regular basis, but is not currently involved in the proposed Lifespan merger. The firm, however, does regularly represent health care providers in conversions. The petitioner’s spouse represents several Lifespan foundations on a regular basis. A partner of the law firm is Chairperson or member of the boards of several Lifespan subsidiaries. The petitioner also represents that in 1997/1998 she represented Landmark Medical Center while an associate in private practice.

Under the Code of Ethics, the petitioner may not participate in a matter in which she, a family member, or a business associate has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her public duties. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the petitioner has reason to believe or expect that she, a member of her family, or any business associate will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). She is prohibited from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, a business associate or a family member. See R.I. Gen. Laws § 36-14-5(d). Under Commission Regulation 5002, Additional Circumstances Warranting Recusal, a public official must recuse if her/his spouse, dependent child, employer, or counsel for her/his spouse, dependent child, or business associate, appears before her/his board or agency.

First, the petitioner queries whether her prior representation of Landmark requires her to recuse on various health care matters as an Assistant Attorney General. The Commission previously has concluded in the attorney/client context as well as others that when the representation ends, the business associate relationship and conflict of interest has ended unless it is reasonably foreseeable that such business will be recurring. See e.g. A.O. 98-159 (advising a Coastal Resources Management Council member that since he does not have an existing or recurring business relationship with an attorney who represents clients before the CRMC, he may participate in matters at the CRMC in which that attorney is a participant without violating provisions of the Code of Ethics). Given that the petitioner’s representation of Landmark ended two years ago and she has no current or expected relationship with Landmark, this prior experience does not serve as a bar to her participation in health care matters at the Attorney General’s office.

Next, the petitioner asks whether the various relationships that her spouse and her spouse's law firm have with Lifespan and other health care providers preclude her from participating in health care matters as a Special Assistant Attorney General. The Commission routinely has advised public officials and employees to recuse on matters that could affect a family member. See A.O. 95-114 (concluding that a Richmond Town Councilor may not participate in any matter in which his brother or his brother's law firm entered an appearance on behalf of a client/developer, or otherwise involves potential financial benefit for his brother or his brother's law firm); A.O. 82-54 (finding that Newport Zoning Board of Review member must recuse on matters where applicants are clients of her spouse’s law firm and her spouse is shareholder in law firm); A.O. 99-93 (advising a State Senator that she may not participate in or vote on legislation designed to revamp the system for managing traffic offenses because the legislation relates to and affects the petitioner’s daughter as a Municipal Court Judge): A.O. 2000-23 (concluding that Newport City Councilor may not participate in matters where his brother-in-law, an attorney, appears before him if it involves a potential financial benefit); A.O. 96-7 (advising that a Woonsocket School Committee member should not participate in or vote on any matter relating to a contract with a social service agency for services similar to those which are or could be provided by the agency employing the petitioner's spouse as its President/CEO); A.O. 91-33 (finding that Newport Zoning Board of Review member should not participate on petitions sought by Newport Hospital given that his spouse is employed as an administrator at the Hospital with responsibilities that includes public relations and acting as liaison between the community and the hospital representatives); A.O. 95-12 (concluding that Department of Business Regulation Director should not participate in applications limited to consideration of rates or other matters which have a significant and direct affect upon his spouse’s anesthesiology practice).

Two related opinions issued by the Commission conclude that a public official/employee could participate in matters relating to a family member under certain circumstances. See A.O. 98-81 (finding a candidate for an Assistant Attorney General, whose spouse simply had admitting privileges in a hospital that may be converted, could participate in health care conversion issues since her spouse did not receive any form of compensation from those entities and also resigned from a hospital committee upon his wife’s employment with the Attorney General) and A.O. 91-36 (advising that Newport Zoning Board of Review member may participate on petitioner filed by Newport Hospital where the Hospital was occasionally represented by the petitioner’s spouse’s law firm provided that it did not represent the hospital on any matter that related to the petition). These opinions are distinguishable from the above opinions and the present matter as the relationships with the party appearing before the agency were not ongoing and/or were indirect in nature.

The petitioner represents that her spouse is currently an associate in a law firm that represents Lifespan, but that the firm is not currently representing it in the merger. She also represents that the firm regularly represents health care providers in conversions. Since her spouse and his employer are not involved in the conversion process that she would be participating in as a public employee, she does not have a substantial conflict of interest under the Code of Ethics that would require her to recuse from such participation. The potential for a benefit or detriment affecting the petitioner or her spouse as an associate in the law firm, and thereby constituting a substantial interest under the law, is too remote and speculative to trigger prohibitions under the Code of Ethics.

However, if her spouse were to become a partner in the law firm, and given that Lifespan is a client of her spouse’s law firm, we conclude her participation in matters that concern the Lifespan conversion would be precluded. This decision is consistent with the Code of Ethics and past decisions of the Commission. As a partner, the petitioner’s spouse would share in the income of the law firm. Since Lifespan and its affiliates are clients of the law firm, it is reasonably foreseeable that matters affecting Lifespan’s legal status in the conversion would impact the law firm’s legal work and consequently, the law firm’s/petitioner’s spouse’s income. Additionally, the Commission has ascribed the same conflicts of interests to exist whether it related to the parent corporation/organization or its subsidiaries/affiliates. See e.g. A.O. 98-10, A.O. 96-46; A.O. 99-35; A.O. 99-64. Therefore, (if the petitioner’s spouse is a partner in the law firm) the petitioner’s spouse’s representation of an affiliate of Lifespan creates a conflict for the petitioner as to the parent corporation or its affiliates. Finally, we note that if the petitioner is assigned to the health care conversion team and is required to recuse on various matters given her spouse’s employment, she must comply with Section 6 of the Code of Ethics, completing a statement of conflict of interest and filing a copy of the same with the Ethics Commission. The petitioner is also cautioned that the Code of Ethics prohibits recusals on a frequent and regular basis (see Commission Regulation 5003).

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-5002
36-14-5003
36-14-7(a)

Related Advisory Opinions:

90-27
91-33
91-35
91-36
95-12
95-89
95-114
96-7
96-46
98-10
98-81
98-159
99-35
99-64
99-93
2000-23

Keywords:

Family: Private Employment
Regulatory Decisions