Advisory Opinion No. 2002-14

Re: Kevin D. McGee

QUESTION PRESENTED

The petitioner, a Coventry Town Councilor, a municipal elected position, requests an advisory opinion as to whether he must recuse from participation in the Council’s consideration of an application submitted by a local developer with whom his employer previously had business dealings.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not require the recusal of the petitioner, a Coventry Town Councilor, a municipal elected position, in a matter involving a local developer with whom his employer previously had business dealings. The petitioner’s relationship with his employer’s business associate is too remote to implicate the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and (d).

The petitioner is a salaried employee of the R.T. Nunes & Sons, Inc. construction company and serves as its General Manager. He advises that Nicholas Cambio of Universal Properties has begun developing a business park in the Town of Coventry and related applications are pending before the Town Council. He represents that six years ago a division of R.T. Nunes & Sons provided vacuum sweeping services to the U.T.E. corporation, of which Mr. Cambio was a partner. R.T. Nunes & Sons also previously purchased earth materials from U.T.E.. He further indicates that R.T. Nunes & Sons provided site work services to two projects in Universal’s business park, located in East Greenwich and West Greenwich, respectively. The petitioner states that his employer did not perform any work for Universal, but provided site work services for firms from Tennessee and Connecticut in response to a bid solicitation.

Pursuant to 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 the petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he is employed or represents 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 employment that will impair his independence of judgment as to his official duties. See R.I. Gen. Laws § 36-14-5(b). Further, 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 business associate, any business by which he is employed or represents, or a family member. See R.I. Gen. Laws § 36-14-5(d). “Business associate” is defined as any individual or entity joined with the public official or employee, “to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). Finally, Commission Regulation 36-14-5002 requires the official to recuse himself whenever his employer or the interest of his employer comes before his board or agency.

Here, a division of R.T. Nunes & Sons, the petitioner’s employer, previously performed work for and purchased earth materials from a division of a firm in which the applicant developer, Nicholas Cambio/Universal Properties, was a partner. To the extent that any business association previously existed between and among the parties under the Code of Ethics, such relationship existed between R.T. Nunes & Sons and the applicant developer. As such, the connection between the petitioner’s actions as a Town Councilor and a developer with whom his employer previously had business dealings is too remote to trigger the prohibitions contained in R.I. Gen. Laws §§ 36-14-5(a) and 5(d). See A.O. 99-27 (opining that a Narragansett Planning Board member may participate in the review of an application notwithstanding the fact that the applicant's lawyer is legal counsel to the petitioner's private employer since his relationship with the attorney and the applicant does not trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(d)); A.O. 99-26 (finding that a Stone Bridge Fire District Administrative Board member, employed with the construction manager for a power plant project in the Town of Tiverton, may participate in matters concerning the water supply to that power plant).

In Advisory Opinion 2001-15, the Commission similarly advised the petitioner that no conflict of interest would arise if he were to continue to serve as a member of the Coventry School Building Committee, despite the fact that a firm hired by the School Building Committee recently contracted with R. T. Nunes & Sons on an unrelated project. There, the Commission also concluded that his relationship with his employer’s business associate would be too remote to trigger the Code of Ethics’ prohibitions.

While the petitioner’s employer has provided site work services to outside firms involved in the business park development in response to bid solicitations, no work has been performed for Universal Properties and no work has been performed in the Town of Coventry. There is no evidence that the petitioner’s employer would receive any financial gain as a result of the application presently before the Coventry Town Council. Accordingly, he may participate in matters involving Nicholas Cambio/Universal Properties, as there is not opportunity for any of his private financial interests, or those of his employer, to impair his independence of judgment with respect to his public duties. See R.I. Gen. Laws §§ 36-14-5(a), (b) and (d).

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

36-14-5002

Related Advisory Opinions:

2002-13

2001-17

2001-15

2000-79

2000-65

99-141

99-27

99-26

98-17

96-73

96-6

93-21

Keywords:

Business associate

Private employment