Advisory Opinion No. 2002-19

Re: Mary Jane DiMaio

QUESTION PRESENTED

The Westerly Town Solicitor requests an advisory opinion on behalf of the petitioner, a Westerly Town Councilor, a municipal elected position, as to whether she must recuse from the Council’s consideration of recommendations made by the Charter Revision Commission, given that a Commission member works as a real estate agent through the petitioner’s realty office.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Westerly Town Councilor, a municipal elected position, may participate and/or vote on recommendations made by the Charter Revision Commission, despite the fact that a Commission member works as a real estate agent through the petitioner’s realty office.

The petitioner is privately employed as a licensed real estate broker. She advises that a member of the Westerly Charter Revision Commission is a real estate agent who works through her realty office. She represents that she recused herself from the Town Council’s appointment of her agent to the Charter Revision Commission.

Under the Code of Ethics, the petitioner may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties and employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). The petitioner will have an interest in substantial conflict with her official duties if she has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of her official activity, to herself, a family member, a business associate, an employer, or any business which she represents. See R.I. Gen. Laws § 36-14-7(a). A “business associate” is defined as any individual or entity joined with a public official "to achieve a common financial objective." R.I. Gen. Laws § 36-14-2(3). Section 5(f) of the Code further requires the petitioner to recuse herself from voting or participating in the consideration and disposition of a matter involving a business associate. See R.I. Gen. Laws § 36-14-5(f).

Here, the petitioner and the Charter Revision Commission member at issue are business associates as that term is defined in the Code of Ethics. However, there is no indication from the facts presented that a “direct monetary gain” or “direct monetary loss” would accrue to the petitioner’s business associate by reason of her participation in the Council’s review of recommendations relating to the Town Charter. Therefore, absent some direct financial nexus between the revised provisions of the Town Charter and the private financial interests of the petitioner and/or those of her business associate, the Code of Ethics does not bar the petitioner’s consideration of recommendations made by the Charter Revision Commission.

Finally, the petitioner may not participate in the Town Council’s consideration and disposition of any matter in which her business associate either represents herself or any other person before the Council, or acts as an expert witness before that public body. See R.I. Gen. Laws § 36-14-5(f). In the unlikely event that the petitioner’s business associate were to personally appear before the Council as a member of the Charter Revision Commission regarding the recommendations at issue, the petitioner must recuse herself from participation and/or vote on the matter. Notice of recusal should be filed with both the Ethics Commission and the Westerly Town Council in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-2(8)
36-14-5(a)
36-14-5(d)
36-14-5(f)
36-14-6
36-14-7(a)

Related Advisory Opinions:

98-128
96-6
95-12

Keywords:

Business Associate
Private employment