Advisory Opinion No. 2001-14

Re: James Silvestri

QUESTION PRESENTED

The petitioner, a Westerly Town Councilor, a municipal elected position, whose private employment and investment includes the ownership of two businesses, requests an advisory opinion as to what restrictions are imposed on him by the Code of Ethics if and when an attorney who acts as legal counsel for the businesses that he owns seeks to appear before the Westerly Town Council representing clients with whom the petitioner has no business association.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Westerly Town Councilor, a municipal elected position, whose private employment and investment includes the ownership of two businesses, should recuse from participating and voting on any matters in which the legal counsel for the businesses that he owns appears representing third party clients, but that so long as the petitioner recuses in such instances the attorney may appear before the Westerly Town Council without restriction and the petitioner is not barred from serving as a member of the Council.

Section 5(f) of the Code of Ethics provides, inter alia, that no business associate of any person subject to the Code of Ethics may represent a client before an agency of which the subject person is a member unless 1) the business associate discloses the nature of his relationship with the member of the agency, and 2) the member of the agency with whom he/she is a business associate recuses from participating in the matter at issue. As interpreted by this Commission in previous opinions, section 5(f) is a complement to section 5(e). The latter provision prohibits a member of an agency, either individually or through an agent or representative, from appearing before his/her own agency on any matter involving his/her own financial interests. Section 5(f), however, addresses situation where a business associate of an agency member seeks to appear before the member's agency on a matter unrelated to their business association. This Commission consistently has opined that in those situations the provisions of section 5(f) are controlling and that, as a result, notice and recusal is sufficient.

In the present case, the petitioner and the attorney who acts as legal counsel for the business that he owns clearly are business associates. They have an existing and ongoing business relationship. The attorney seeks to appear before the petitioner's agency on matters that are not related to the petitioner. His representation of third parties before the petitioner's agency are not barred, as would be the case if the petitioner's private financial interests were implicated. Rather, with notice of the relationship with the petitioner by the attorney, and recusal by the petitioner, the requirements of section 5(f) will have been satisfied.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-5(e)

36-14-5(e)(1)

36-14-5(f)

36-14-6

Related Advisory Opinions:

2000-41

99-127

98-113

98-105

98-97

98-12

97-146

94-38

94-19

92-68

89-71

GCA 11

Related Case Law:

Thomas DiLuglio v. RIEC, 726 A.2d 1149 (R.I. 1999)

Keywords:

Business associate

Property interest

Recusal

Revolving door