Advisory Opinion No. 2001-70

Re: Thomas D. Goldberg, Esq.

QUESTION PRESENTED

The petitioner, a Rhode Island Ethics Commission member, a state appointed position, requests an advisory opinion as to whether he may participate in the adjudication of a complaint filed against John B. Harwood, Speaker of the House of Representatives, given that the petitioner’s brother and law partner is a registered lobbyist.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Rhode Island Ethics Commission member, a state appointed position, may participate in the adjudication of a complaint filed against John B. Harwood, Speaker of the House of Representatives.

Under the Code, a public official or employee 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. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). The petitioner 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 his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” See R.I. Gen. Laws § 36-14-2(3). Finally, neither the petitioner nor his business associates shall solicit or accept any gift, loan, reward or promise of future employment based on any understanding that the petitioner’s vote, official action, or judgment would thereby be influenced. See R.I. Gen. Laws § 36-14-5(g).

The petitioner seeks guidance as to whether he may participate in the Ethics Commission’s adjudication of a complaint matter involving John B. Harwood, Speaker of the House of Representatives. The petitioner’s brother and law partner, his business associate under the Code of Ethics, is a registered lobbyist. Based upon the facts presented, no familial or private business relationship exists between the petitioner and Mr. Harwood that would bar his participation in the complaint matter. Further, he does not have reason to believe or expect that a direct financial gain or a direct financial loss would accrue to his brother and/or his law firm by reason of his participation in the complaint’s adjudication.

The fact that the petitioner’s brother may appear before Mr. Harwood in his capacity as a registered lobbyist does not, in and of itself, constitute a conflict of interest. Without the existence of a relationship covered by the Code of Ethics between the petitioner and the subject of the complaint (e.g., business associate, family, or employer) or a quid pro quo arrangement indicating that the petitioner’s judgment would be affected due to the receipt of a gift, loan, reward or promise of future employment, nothing in the Code of Ethics prohibits his participation in this matter. See A.O. 2001-24 (concluding that a Town Councilor employed by the Secretary of State’s Office may participate in Council matters involving property owned by the Secretary of State’s Deputy Chief of Staff, given that they do not have a familial relationship and no business association exists between the parties); A.O. 99-40 (holding a Woonsocket Personnel Board member may participate in matters involving the Woonsocket Police Department notwithstanding that he previously served as Chief of that Department’s Reserve Force and has an existing social relationship with someone in the Department); A.O. 92-72 (finding a Middletown Zoning Board member could participate in matter where a social relationship but no business relationship exists with applicant provided that the Council member could act in an impartial manner concerning that person’s application).

Further, on May 31, 2001, the Commission’s Legal Counsel requested an Advisory Opinion from the Attorney General, pursuant to R.I. Gen. Law § 42-9-6, relating to the procedure by which it may obtain a quorum for the purpose of considering the complaint against Mr. Harwood. Several members’ recusals had rendered the Commission unable to consider the matter for lack of a quorum. On June 12, 2001, the Attorney General issued an Advisory Opinion to the Commission in which it opined as to the proper procedure by which the Commission may invoke and apply the Rule of Necessity for purposes of establishing a quorum. After determining that a quorum of the Commission is five members for the preliminary investigation and probable cause phases and that three members must participate during the hearing phase, the Attorney General addressed application of the so-called Rule of Necessity.

The Attorney General stated its belief that the Rule of Necessity must be invoked to attain a quorum for the three distinct phases. In accordance with relevant case law, it opined that the Commission must randomly select three members to participate by drawing from the names of the members asserting conflicts. See Poirier v. Martineau et al., 136 A.2d 814 (R.I. 1957); Poirier v. Martineau et al., 138 A.2d 331 (R.I. 1958); Cullen v. Adler, 271 A.2d (R.I. 1970). The two members who have not asserted conflicts must participate in all phases. The remaining members who have not been selected by random drawing shall be disqualified from participation.

Pursuant to R.I. Gen. Laws § 36-14-8(l), “[w]hen Commission members act in good faith within the scope of their authority and in their official capacities they shall be afforded protection against civil liability as provided in section 9-1-31.1 of the general laws.” Here, the Commission finds that the petitioner’s brother/law partner’s status as a lobbyist does not preclude his participation in this matter. However, it further concludes that his participation for purposes of establishing a quorum, in accordance with the Attorney General’s Advisory Opinion, would not constitute a violation of any provisions of the Code. If the petitioner, or any other Commission member, were subject to an ethics complaint when performing his duties pursuant to the Rule of Necessity, the Rule would be rendered meaningless and ineffective. Accordingly, the Commission concludes that the petitioner may participate in the adjudication of a complaint filed against Mr. Harwood without running afoul of the Code of Ethics.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(g)

36-14-7(a)

Related Advisory Opinions:

2001-56

2001-24

2001-17

99-114

99-96

99-40

92-72

Relevant Case Law:

Poirier v. Martineau et al., 136 A.2d 814 (R.I. 1957)

Poirier v. Martineau et al., 138 A.2d 331 (R.I. 1958)

Cullen v. Adler, 271 A.2d (R.I. 1970).

Keywords:

Advisory opinion

Business associate

Rule of necessity