Advisory Opinion No. 2002-15

Re: Westerly Town Solicitors

QUESTION PRESENTED

The Westerly Town Solicitor requests an advisory opinion as to whether the Assistant Town Solicitor, a municipal appointed position, may serve as legal counsel to the Zoning Board in an appeal of a decision in which he advised the Planning Board. Alternatively, he inquires as to his own ability to act as legal counsel in the appeal before the Zoning Board, given that he previously represented one of the parties.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Westerly Assistant Town Solicitor, a municipal appointed position, from serving as legal counsel to the Westerly Zoning Board in an appeal of a decision in which he advised the Planning Board. Further, the Town Solicitor may act as legal counsel to the Zoning Board in the matter at issue, despite his prior representation of one of the parties.

The Westerly Town Solicitor advises that the Westerly Planning Board previously approved a commercial development plan for a hotel/resort. The Assistant Town Solicitor, John Gentile, who serves as legal counsel to both the Westerly Planning and Zoning Boards, advised the Planning Board on the subject application. The Solicitor informs that a group of neighboring property owners has appealed the Planning Board’s decision to the Zoning Board. He represents that the Zoning Board must rely strictly on the record to determine if the Planning Board erred in its application of the law. The Assistant Solicitor would advise the Zoning Board during the hearing on and deliberation over the appeal. In the event that the Code of Ethics prohibits the Assistant Solicitor from advising the Zoning Board in this matter, the Solicitor inquires as to his own ability to act as legal counsel to the Zoning Board, given his prior representation of one of the appellant neighbors. He indicates that such representation was limited to acting as the individual’s settlement agent at a property closing.

The Code of Ethics provides, inter alia, that a public official may not participate in matters where he or she has a substantial conflict of interest, use his or her office for pecuniary gain, or accept employment that would impair his or her independence of judgment as to his or her official duties. See R.I. Gen. Laws §§ 36-14-5(a), (b), (d) and 7(a). A substantial conflict of interest exists if the public official has reason to believe or expect that he or she, or a business associate, or any business by which he or she is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a).

No provision in the Code of Ethics prohibits an official from participating in one forum and then in another. In an analogous advisory opinion, the Commission previously concluded that the Code of Ethics did not prohibit a member of the Pawtucket Water Supply Board from also serving as an elected City Councilor in that municipality. See e.g., A.O. 99-110. There, the Council member served on the Water Supply Board as a representative of the City Council and had the ability to vote on the same issues in different forums. See also A.O. 2000-34 (opining that Warwick City Councilors also may serve on the Warwick Station Redevelopment Agency’s negotiating team, notwithstanding that the Agency may become involved with zoning and property tax issues which would require the Council’s official action); A.O. 97-94 (finding that a Block Island Town Councilor who sat on a Health Services Board of Directors due to the Town’s financial interest in the facility could participate in matters directly or indirectly affecting the Block Island Health Services, Inc., since there was no personal financial incentive for Council members to either serve on the Board or in the health services business generally); A.O. 97-145 (concluding no substantial conflict of interest for the Executive Director of RIHMFC, who served as an ex officio member of the State Housing Appeals Board, to participate in a matter affecting a prior applicant before RIHMFC).

Although there may be overlap in the Assistant Solicitor’s public roles as legal counsel to both public bodies, a substantial conflict of interest is not apparent by him holding these positions which may only involve the other public entity. Sections 5(a) and 5(d) of the Code do not create an absolute bar to simultaneous service as legal counsel for both the Westerly Zoning and Planning Boards. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out his official duties in the public interest. In order for a substantial conflict of interest to exist, there must be some evidence of a financial nexus between his public positions and his private financial interests.

Given the facts presented, there is no evidence to suggest that the Assistant Solicitor would receive a personal financial benefit by or because of any official action he may take in his capacity as legal counsel to the Zoning Board. His function would be to serve the public interest rather than to represent some private financial interest. Accordingly, a substantial conflict of interest as defined by the Code of Ethics is not present. When enacting the Code of Ethics, the General Assembly included as one of its legislative purposes the elimination of appearances of impropriety. The legislature did not, however, make the appearance of impropriety a violation of the law. Therefore, if, in a particular situation the Assistant Solicitor believes his participating would create an appearance of impropriety, he may recuse, although he is not required to do so. Whether the Assistant Solicitor’s participation in the appeal before the Zoning Board would run afoul of other statutes, regulatory provisions or professional rules is not within the Commission’s purview.

Finally, the Code of Ethics does not prohibit the Town Solicitor from participating in matters involving an individual whom he previously represented in his capacity as a private attorney. The Commission consistently has found that no potential for a conflict of interest exists when a prior business association between a public official and a private party has ended and where there is no ongoing or anticipated future relationship between the parties. In such instances, a public official may participate in matters involving his or her former business associate, assuming no other conflicts are present. Accordingly, the Town Solicitor may act as legal counsel to the Westerly Zoning Board in the appeal at issue without running afoul of the Code of Ethics.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

2002-1

2000-34

99-110

99-57

99-22

99-12

98-129

98-117

98-75

98-25

97-145

97-112

97-94

96-68

96-62

96-26

96-9

Keywords:

Business associate

Dual public roles