Advisory Opinion No. 2001-51

Re: Jay Litman

QUESTION PRESENTED

The petitioner, a Barrington Technical Review Committee (TRC) member, a municipal appointed position, requests an advisory opinion as to whether he may accept private employment as an architect for the Center Village elderly housing development, provided that he recuses himself from the TRC’s consideration of the project.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a Barrington Technical Review Committee (TRC) member, from accepting private employment as an architect for the Center Village elderly housing development, provided that he 1) does not disclose confidential information acquired by him in the course of his official duties for financial gain; 2) does not appear before the TRC on behalf of the Center Village project; and 3) recuses from participation and/or vote in the TRC’s consideration of the project.

The petitioner is the Chair of the Barrington Technical Review Committee (TRC), which advises the Planning Board on building design, signage and landscape issues. Additionally, he serves as Chair of the Barrington Zoning Ordinance Review Committee, which reviews existing zoning regulations and make recommendations to the Town Council for changes that would be more consistent with the Town’s comprehensive plan. The petitioner is a private architect employed by Newport Collaborative Architects, Inc.. He advises that developers Ned and Mary Lundgren have chosen his firm to design Center Village, a proposed 26 unit elderly housing development in Barrington. He represents that the land for the project currently is zoned for business use and the developers have requested a zoning change to permit elderly housing. The Council has referred the request to the Planning Board for its consideration at a later date. In the event that the Council approves the zoning change, the TRC would then review the project design for recommendation to the Planning Board. He indicates that he has recused himself from any participation and/or vote on the matter. Finally, he informs that he would not represent the Center Village developers before either the TRC or the Planning Board.

Under the Code of Ethics, the petitioner may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. A substantial conflict of interest occurs if he has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, 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). He may not accept other employment that will either impair his independence of judgment as to his official duties or employment or require him to disclose confidential information acquired by him in the course of his official duties. See R.I. Gen. Laws § 36-14-5(b). He is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. See R.I. Gen. Laws § 36-14-5(d). In addition, a person subject to the Code may not participate in the consideration and/or disposition of a matter involving a business associate. R.I. Gen. Laws § 36-14-5(f). “Business associate” is defined as any individual or entity joined with a public official or employee “to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3).

The Code further provides that a public official may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1), and (2). Pursuant to R.I. Gen. Laws § 36-14-5(e)(3), the petitioner may not act as an expert witness before his agency with respect to any matter the agency’s disposition of which will or can reasonably be expected to directly result in an economic benefit or detriment to him or to any business by which the person is employed or that the person represents. Further, Section 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner officially has severed his position with the agency. The legislative intent of this revolving door provision presumably is to minimize any influence the former public official may have with respect to his former agency/employer. The only exceptions to Section 5(e)’s strict prohibitions are those allowed by this Commission in cases of hardship.

In an analogous advisory opinion, the Commission previously concluded that, inter alia, a Barrington Technical Review Board member must recuse from participation and/or vote regarding his private client’s development project where the client appeared before the Board, either pro se or represented by another individual/firm. See e.g. A.O. 99-126. There, the Board member was the owner and sole employee of an architectural firm and his client’s project was subject to the Board’s review. Pursuant to Section 5(e) of the Code of Ethics, the petitioner may not appear before his own board within one year of the official severance of his position with the Technical Review Committee. Here, the petitioner specifically represents that he would not represent the Center Village developers before the TRC or other municipal entities. Therefore, absent some other prohibited involvement or interest, the Code does not bar his acceptance of private employment as an architect on the Center Village project, provided that he does not disclose confidential information acquired by him as a TRC member for private financial gain. Further, he must recuse himself from participation and/or vote in the TRC’s consideration of the Center Village project. See R.I. Gen. Laws §§ 36-14-5(a), (f).

Similarly, in the event that the Zoning Ordinance Review Committee is asked to consider matters relating to the Center Village project, Section 6 of the Code requires the petitioner’s recusal. Notice of recusal should be filed with both the Town of Barrington and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. Finally, the petitioner may not use any confidential information he obtained in his capacity as either a member of the TRC or Zoning Ordinance Review Committee for private financial gain. See R.I. Gen. Laws § 36-14-5(b), (c), (d). He is further reminded that he may not in any way use his public position on the TRC to solicit business for himself in his private employment as an architect. See R.I. Gen Laws § 36-14-5(d).

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(c)

36-14-5(d)

36-14-5(e)

36-14-5(f)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2001-37

2001-27

2001-16

2001-9

99-126

99-120

99-113

97-146

97-81

97-71

Related Caselaw:

DiLuglio v. Rhode Island Ethics Commission, C.A. 85-4556

Keywords:

Financial interest

Private Employment

Recusal

Revolving Door