Advisory Opinion No. 2001-71

Re: Richard E. Kirby, 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 Commission’s consideration of a complaint filed against John B. Harwood, Speaker of the House of Representatives, given that 1) his appointing authority is the subject of the complaint; 2) he previously had a business association with a witness in the matter; and 3) he also is a potential witness in the proceedings.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a Rhode Island Ethics Commission member, a state appointed position, from participating in the Commission’s consideration 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, the petitioner shall not solicit or accept any gift, loan, reward or promise of future employment based on any understanding that his 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 consideration of a complaint filed against John B. Harwood, Speaker of the House of Representatives, who also is his appointing authority. The complaint sets forth allegations relating to Mr. Harwood’s representation of a private client, Cynthia Simmons, before a state agency. The petitioner informs that at the time Ms. Simmon’s retained Mr. Harwood, his law office was located in her building and he paid a monthly rental fee to her for use and occupancy. He indicates that she discussed with him both her legal matter before the agency at issue and her decision to retain new counsel. He informs that he provided his professional opinion of Mr. Harwood. Finally, he advises that he expects his former landlord to be called as a witness in this matter and inquires whether he may participate if subpoenaed as a witness to the proceedings by either Mr. Harwood or the prosecution.

The fact that the subject of the complaint is the petitioner’s appointing authority does not, in and of itself, constitute a conflict of interest. The mere fact that a public official presides over and/or decides a matter involving his or her appointing authority does not constitute a violation of the Code of Ethics without additional evidence implicating the specific prohibitions set forth in R.I. Gen. Laws § 36-14-5. See A.O. 98-98 (concluding that a Tiverton municipal judge may preside over and adjudicate a complaint against members of the Town Council that appointed him where the current Council does not have the ability to affect his private interests, including his possible reappointment and compensation, until after the intervening event of an election).

Having already received appointment from the Mr. Harwood as Speaker of the House, the next juncture at which that appointing authority could affect the petitioner would be in considering his appointment to an full five-year term. However, a statewide election will occur in the interim. The election constitutes an independent, intervening event that effectively insulates the petitioner from potential conflicts of interest involving his appointing authority.

Based upon the facts presented by the petitioner, no familial or private business relationship exists between the petitioner and Mr. Harwood and/or Ms. Simmons that would bar his participation in the complaint matter. As to Ms. Simmons, the petitioner is no longer her tenant and no current business association exists between them. Therefore, the petitioner does not have reason to believe or expect that a direct financial gain or a direct financial loss would accrue to himself, his family, or business associate by reason of his participation in the complaint matter.

Without the existence of a relationship covered by the Code of Ethics (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. 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).

The petitioner further inquires as to his ability to participate in the Commission’s consideration of the complaint in the event that he is subpoenaed as a witness by either the prosecution or Mr. Harwood. As set forth supra, the petitioner has no financial interest in the matter before the Commission. Nor do his relationships with Mr. Harwood and Ms. Simmons trigger the prohibitions contained within the Code of Ethics. Accordingly, the Code would not prohibit his participation in the matter if he were subpoenaed as a witness to the proceedings.

This opinion solely addresses whether the Code of Ethics prohibits the petitioner from participating in the consideration of Mr. Harwood’s complaint. It does not, and cannot, address whether any other statutes, rules or policies, would prohibit his participation. The Ethics Commission does not exercise jurisdiction over those statutes and, therefore, is not empowered to issue advisory opinions addressing or interpreting their effect.

Finally, 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 concludes that the Code of Ethics does not prohibit the petitioner’s participation in the matter at issue. 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 the consideration 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

98-98

98-64

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

Code jurisdiction