Advisory Opinion No. 2001-1

Re: Mary Jane DiMaio

QUESTION PRESENTED

The petitioner, a Westerly Town Councilor, a municipal elected position, requests an advisory opinion as to whether she may participate and vote on Council matters regarding the School Department, given that the lease agreement she and her spouse had with the School Department has terminated.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Westerly Town Councilor, a municipal elected position may participate and vote on matters involving the School Department, given that the lease agreement she and her spouse had with the Department has terminated and that, as a result, they no longer are business associates under the Code of Ethics.

The petitioner advises that she and her spouse previously leased property to the Westerly School Department on a monthly basis for schoolroom space for the Town’s Excel Program. The lease agreement was in effect prior to her election to the Town Council in 1998. In Advisory Opinion 99-7, the Commission advised the petitioner to recuse herself from participation and vote on the school budget based upon her business association with the School Department. She represents that the School Department terminated its tenancy and vacated the property in June 1999.

Under the Code of Ethics, the petitioner may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(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). A “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective.” See R.I. Gen. Laws § 36-14-2(3). Section 5(f) of the Code requires the petitioner to recuse herself from voting or participating in the consideration and disposition of a matter involving a business associate. See R.I. Gen. Laws § 36-14-5(f).

In past advisory opinions, the Commission has required public officials to recuse from consideration of matters 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. 98-142 (finding that a Coastal Resource Management Council member should recuse from participating in matters involving a law firm while he has an ongoing attorney-client relationship with a member of that firm); A.O. 98-117 (concluding an Exeter Town Councilor should not participate in a zoning matter where she has had and will likely have an employment relationship with an attorney appearing before her on a zoning matter); and, A.O. 94-60 (concluding that a member of the North Kingstown Planning Commission should not participate in the consideration of a subdivisions proposal submitted by an engineer where the member planned to engage in business projects within the immediate future with that engineer).

However, the Commission consistently has found that no potential for a conflict of interest exists when a prior business relationship between a public official and a private party has ended and where there is no ongoing or anticipated future relationship between the parties. In such instances, a public official may participate in matters involving his or her former business associate assuming no other conflicts are present. See 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. 98-25; A.O. 96-62, A.O. 96-68, and A.O. 97-7.

Accordingly, the Commission concludes that the petitioner may participate and vote on Council matters regarding the School Department, including school budgetary matters, provided that their business relationship has terminated and that Further, she must recuse there is no reasonable expectation or reasonable likelihood of future business dealings between the parties. Notice of recusal that becomes necessary should be filed with both the Ethics Commission and the Town of Westerly pursuant to R.I. Gen. Laws § 36-14-(6).

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(d)

36-14-5(f)

36-14-6

36-14-7(a)

Related Advisory Opinions:

99-141

99-95

99-78

99-7

98-159

98-141

98-117

98-25

97-112

96-68

96-62

96-30

Keywords:

Business associate

Property interest