Advisory Opinion No. 2000-87

Re: Brian P. Lanoie

QUESTION PRESENTED

The petitioner, a Burrillville Planning Board member, a municipal appointed position, requests an advisory opinion as to whether he may 1) seek a position with the Burrillville Redevelopment Agency; and 2) participate in the Planning Board’s consideration of matters involving a developer through whom his home is under a one-year warranty.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a Burrillville Planning Board member, a municipal appointed position, from also serving on the Burrillville Redevelopment Agency. However, the petitioner must recuse from the Planning Board’s consideration of matters involving the developer from whom he purchased his home, given that the developer has yet to complete all repairs to be performed under the warranty.

The petitioner advises that the Town of Burrillville currently is accepting applications for positions on a to be created Redevelopment Agency. The Agency’s basic functions will be to promote the redevelopment of blighted and substandard areas of the Town, to determine the legitimacy and priority of potential redevelopment projects and to coordinate and/or direct their implementation. He represents that the Agency’s functions will not involve its appearance before the Planning Board, although the Agency may solicit property owners for redevelopment projects who subsequently may appear before the Planning Board regarding their property. He further advises that the developer from whom he purchased his home is scheduled to appear before the Planning Board at its next meeting. The one-year warranty period on his home will expire on December 3, 2000 and the developer has yet to complete several repairs covered by the warranty.

The Code of Ethics provides, inter alia, that a public official may not participate in matters where he has a substantial conflict of interest, use his office for pecuniary gain, or accept employment that would impair his independence of judgment as to his official duties. See R.I. Gen. Laws § 36-14-5(a), 5(b), 5(d), 7(a). A substantial conflict of interest exists if the public official has reason to believe or expect that he, or a business associate, or any business by which he is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Section 5(f) of the Code requires a business associate to notify the agency of the nature of his or her business relationship with the public official and requires the public official to recuse himself from voting or participating in consideration and disposition of the matter at issue. An individual is a "business associate" of a public official if the official and that individual are "joined together" to "achieve a common financial objective." See R.I. Gen. Laws § 36-14-2(3).

Here, the petitioner advises that property owners may bring matters in which the Redevelopment Agency previously participated before the Planning Board. No provision in the Code of Ethics prohibits a public official from voting in one forum and then in another. In an analogous advisory opinion, the Commission concluded that the Code of Ethics did not prohibit a member of the Pawtucket Water Supply Board from also serving as an elected City Councilor in that municipality. A.O. 99-110. There, the Council member served on the Water Supply Board as a representative of the City Council. That the Council member would have the ability to vote on the same issues as a member of both entities did not act as a bar to such simultaneous service. See also, A.O. 97-94 (finding that a Block Island Town Councilor who sat on a Health Services Board of Directors due to the Town’s financial interest in the facility could participate in matters directly or indirectly affecting the Block Island Health Services, Inc., since there was no personal financial incentive for Council members to either serve on the Board or in the health services business generally).

Although there may be some overlap in the petitioner's public roles, a substantial conflict of interest is not apparent by his holding these positions which may only involve the other public entity. Sections 5(a) and 5(d) of the Code do not create an absolute bar to simultaneous service as a member of both the Redevelopment Agency and the Planning Board. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out his official duties in the public interest. In order for a substantial conflict of interest to exist, there must be some evidence of a financial nexus between the petitioner’s public positions and his private financial interests. Given that he will not receive any personal benefit, financial or otherwise, by or because of any official activity he may take in relation to either public body, a substantial conflict of interest as defined by the Code of Ethics is not present. The petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits him, as a municipal appointed official, from seeking or accepting appointment to the Redevelopment Agency. This opinion does not, and could not, address whether any other statutes or ordinances prohibit such simultaneous service. The Ethics Commission does not exercise jurisdiction over those statutes or ordinances and therefore is not empowered to issue advisory opinions addressing or interpreting their effect.

In past advisory opinions, the Commission has required public officials to recuse from consideration of a matter if the official had an ongoing or anticipated business relationship with an individual or entity appearing before his or her public body. See e.g., A.O. 94-60 (concluding that a member of the North Kingstown Planning Commission could not participate in a subdivision proposal submitted by an engineer where the member planned to engage in business projects within the immediate future with that engineer). See also A.O. 96-100. However, the Commission has permitted public officials to participate in matters involving a former associate if it is clear that the business relationship has terminated and that the parties do not anticipate any future business dealings. See A.O. 99-78 (advising a Narragansett Planning Board member that he may participate in the Board’s consideration of matters involving a personal acquaintance and/or a professional who previously represented him, provided a) no business relationship currently exists between the parties and b) it is not reasonably foreseeable that the parties will engage in a future business relationship); A.O. 96-30 (concluding that a City Councilor could participate in a matter involving an individual he represented more than five years ago as an attorney given that there was neither an ongoing relationship with the individual nor any specific plans to represent the party in the future). See also A.O. 96-62 and 96-68.

In an analogous advisory opinion, the Commission concluded that the Code required a member of the State Board of Registration for Professional Engineers to recuse himself from participation in consideration of a licensing matter where he had performed engineering services for the applicant and the bill for those services had not been paid. See, e.g., A.O. 96-100. Similarly, we conclude that the petitioner must recuse from the Planning Board’s consideration of matters involving the developer since repair items remain unperformed under the warranty. The existence of a warranty between a home-owner and a developer who has been paid in full does not, in and of itself, trigger a business association under the Code. Here. however, although the developer has been paid, he has not yet addressed the warranty items submitted by the petitioner. Unless and until those items are completed, performance of the warranty is subject to dispute and it is reasonably foreseeable that litigation might arise. Accordingly, he must recuse himself from the Planning Board’s consideration of any matters involving the developer while work remains to be performed under the warranty and/or in the event that litigation arises between the parties. See R.I. Gen. Laws § 36-14-5(a),(b),(d), and (f). Notice of recusal should be filed with both the Town of Burrillville and the Ethics Commission under R.I. Gen. Laws § 36-14-(6).

Code Citations:

36-14-2(3)
36-14-5(a)
36-14-5(b)
36-14-5(d)
36-14-5(f)
36-14-6
36-14-7(a)

Related Advisory Opinions:

2000-34
99-141
99-110
99-78
99-57
99-22
98-141
98-129
98-117
98-75
97-145
97-94
96-100
96-68
96-62
96-30
96-26
96-9
94-60

Keywords:

Business associate
Candidate
Dual public roles
Recusal