Advisory Opinion No. 2001-4

Re: Wayne Brusseau - December 12, 2000

QUESTION PRESENTED

The Westerly Town Solicitor requests an advisory opinion on behalf of the petitioner, a Westerly Town Councilor, a municipal elected position, as to whether he must recuse himself from the Council’s consideration of matters involving 1) Wal Mart; and 2) an attorney who previously represented him as an objector to Wal Mart’s expansion plans, given that while he no longer owns property abutting Wal Mart, his daughter still does.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Westerly Town Councilor, a municipal elected position, must recuse himself from participating and voting on Council matters involving Wal Mart given that his daughter owns property that directly abuts Wal Mart. However, he may participate and vote on matters involving an attorney who previously represented him as an objector to Wal Mart’s expansion plans, provided that their business relationship has ended and it is not reasonably foreseeable that they will engage in future dealings.

The petitioner advises that he previously owned property abutting a Wal Mart store in Westerly. Vincent Naccarato, Esq. represented him as an objector to Wal Mart’s various expansion plans. In September 1999, the petitioner sold his house to his daughter. He represents that he is no longer an abutting property owner, and neither he nor his daughter is an objector to Wal Mart.

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. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). An official will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a). (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).) R.I. Gen. Laws § 36-14-5(d) further prohibits an official from using his position or confidential information received though his position to obtain financial gain, other than that provided by law, for himself, business associate or any person within his family. Section 5(f) of the Code requires the petitioner to recuse himself 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). A public official or employee has reason to believe or expect that a conflict may exist when it is “reasonably foreseeable.” Commission Regulation 36-14-6001.

The Commission previously has concluded that the Code of Ethics prohibits public officials from participating in matters that may affect their families, including decisions regarding property. See, e.g., A.O. 97-63; A.O. 92-24; A.O. 90-85. The Commission has expanded its analysis to include participating in property matters where a family member is an abutter. See A.O. 98-39 (concluding that the Coventry Town Solicitor should not advise the Council regarding parcels that are adjacent to land owned by a corporation in which his brother-in-law has a substantial interest); A.O. 97-76 (finding a Coventry Planning Commission member should not participate in matters relating to a proposed subdivision given that her brother was an abutter to the project). The same analysis applies here, where the petitioner’s daughter owns property abutting the Wal Mart at issue. Absent some evidence that no action by the Town Council regarding Wal Mart would affect the financial interests of his daughter as an abutter, the petitioner may not participate in the Council’s consideration of matters involving Wal Mart. Notice of recusal should be filed both with the Westerly Town Council and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

The petitioner further inquires as to his ability to participate in Council matters involving Attorney Naccarato, who previously represented him as an objector to Wal Mart. Previously, the Commission has concluded that an ongoing attorney-client relationship creates a business association that triggers the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(f). See e.g., A.O. 98-56 and A.O. 98-25. 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 in the consideration of matters involving Attorney Naccarato, provided there is no current business relationship between the parties and no expectation of further representation.

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)

36-14-6001

Related Advisory Opinions:

2000-90

99-141

99-99

99-95

99-78

99-34

98-159

98-142

98-117

98-47

98-39

98-26

98-25

97-112

97-76

97-63

96-68

96-62

96-30

94-42

92-24

90-85

Keywords:

Business associate

Family: property interest

Recusal