Advisory Opinion No. 2002-28

Re: Carl J. Coutu

QUESTION PRESENTED

The West Warwick Town Solicitor requests an advisory opinion of behalf of the petitioner, a member of both the West Warwick School Building Committee and Planning Board, municipal appointed positions, as to whether he may 1) serve as the Building Committee’s liaison to the contractor hired by the Town to build an elementary school; 2) participate in Planning Board matters involving the proposed elementary school; and 3) simultaneously serve on both public bodies, despite the fact that the contractor hired by the Town purchases building supplies from the petitioner’s employer.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a member of both the West Warwick School Building Committee and Planning Board, municipal appointed positions, from either serving as the Building Committee’s liaison to the contractor hired to build an elementary school or participating in the Planning Board’s consideration of matters involving said school, since his relationship with the contractor is not a business association that would trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 7(a). Further, his simultaneous service on the West Warwick School Building Committee and the Planning Board, does not, in and of itself, present a conflict of interest under the Code of Ethics.

Under 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. See R.I. Gen. Laws §§ 36-14-5(a), and 7(a). The petitioner will have an interest in substantial conflict with his official duties if it is likely that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a). Section 5(b) of the Code prohibits him from accepting other employment that would impair his independence of judgment or require him to disclose confidential information acquired by him in the course of his official duties.

The petitioner further 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, or any business by which he is employed or represents. See R.I. Gen. Laws § 36-14-5(d). Finally, section 5(f) of the Code requires the petitioner to recuse himself from voting or participating in the consideration and disposition of a matter involving a business associate. Business associates are defined as individuals or entities joined together to "achieve a common financial objective." R.I. Gen. Laws § 36-14-2(3).

The West Warwick Town Solicitor advises that the petitioner, Carl J. Coutu, is a contractor by profession and is employed as manager of Arnold Lumber Co.’s commercial/industrial sales division selling building materials to commercial contractors. The Town of West Warwick is in the process of building an elementary school and has selected O. Ahlborg & Sons, Inc. as its contractor. The School Building Committee has appointed the petitioner as its liaison to the contractor. The petitioner represents the he previously has had business dealings with O. Ahlborg & Sons. He further indicates that the contractor presently purchases materials from his employer, Arnold Lumber, and likely will continue to do so in the future. His employer does not have any contracts with O. Ahlborg & Sons.

In past advisory opinions, the Commission has required public officials to recuse from consideration of matters if the official had an ongoing or anticipated business relationship with an individual or entity appearing before his or her public body. See e.g., A.O. 98-142 (finding that a Coastal Resource Management Council member must recuse from participating in matters involving a law firm while he has an ongoing attorney-client relationship with a member of that firm); A.O. 98-117 (concluding an Exeter Town Councilor may not participate in a zoning matter where she has had and will likely have an employment relationship with an attorney appearing before her on a zoning matter); A.O. 94-60 (concluding that a North Kingstown Planning Commission member may not participate in the consideration of a subdivisions proposal submitted by an engineer where the member planned to engage in business projects with that engineer in the immediate future).

However, the Commission consistently has found that no potential for a conflict of interest exists when a prior business relationship 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. See A.O. 96-30 (concluding that a City Councilor could participate in a matter involving an individual he represented more than five years ago as an attorney given that there was neither an ongoing relationship with the individual nor any specific plans to represent the party in the future). See also A.O. 98-25; A.O. 97-7; A.O. 96-62; A.O. 96-68.

While the petitioner previously had business dealings, individually, with O. Ahlborg & Sons, no present business association exists between the parties. Nor does the petitioner’s employer have existing contracts or a specific business relationship with that contractor. Arnold Lumber merely provides building supplies to its customers in the ordinary course of business. Absent some direct and ongoing financial relationship, the normal commercial dealings between the petitioner’s employer and its customers do not rise to the level of business association as defined in R.I. Gen. Laws § 36-14-2(3). See A.O. 99-21 (finding that a Westerly Town Councilor may participate in the review and/or award of a contract, despite the fact that companies that purchase parts from his automobile parts store may respond to the RFP, since his relationship with such companies is not a business association); A.O. 93-21 (concluding that a West Warwick Town Councilor who is a regular customer of a restaurant could participate in the review of an application for a twenty-four hour victualling license for that restaurant absent a significant financial nexus). Further, the Code of Ethics does not require the petitioner’s recusal on matters involving a business associate of his private employer.

Here, there is no present business association between the contractor and either the petitioner or his private employer. Additionally, there is no evidence that Arnold Lumber’s business would be financially affected by the Planning Board’s decisions on matters involving one of its customers. Accordingly, the petitioner may serve as the liaison to O. Ahlborg & Sons, as well as participate and/or vote in the Planning Board’s consideration of matters involving the proposed elementary school, provided that his business relationship with that contractor has terminated and there in no expectation of business dealings between the parties in the near future. See R.I. Gen. Laws § 36-14-5(a), (b), (d), and (f).

However, in the event that the petitioner expects to engage in a business relationship with O. Ahlborg & Sons in the near future, he is required to recuse from participation and/or vote in all matters involving that contractor that appear before the School Building Committee and the Planning Board. Notice of recusal should be filed both with the Ethics Commission and the Town of West Warwick in accordance with R.I. Gen. Laws § 36-14-6.

Finally, the petitioner’s simultaneous service on both the West Warwick School Building Committee and the Planning Board does not constitute an inherent conflict of interest under the Code of Ethics, absent other factors. Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service as a member of both public bodies. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out an official’s duty in the public interest. Although there may be overlap in the petitioner’s public roles, a substantial conflict of interest is not apparent by the petitioner holding these positions which may only involve the other public entity. See A.O. 99-100 (finding that a member of both the Tiverton Conservation Commission and the Tiverton Planning Board may participate in both entities’ review of a subdivision proposal and/or related zoning amendments provided there is no financial nexus between his actions as a public official wearing one hat and his position as a public official wearing another hat). Absent some direct financial nexus between the petitioner’s actions as a School Building Committee member and his actions as a Planning Board member, no inherent conflict of interest would preclude such simultaneous service.

Code Citations:

36-14-2(3)
36-14-5(a)
36-14-5(b)
36-14-5(d)
36-14-5(f)
36-14-6
36-14-7(a)

Related Advisory Opinions:

2002-13
2001-17
2001-7
2001-2
2001-1
2000-82
2000-71
2000-56
99-149
99-141
99-100
99-89
99-78
99-21
98-168
98-159
98-142
98-117
98-25
97-112
97-7
96-68
96-62
96-30
96-6
94-60
93-21

Keywords:

Business associate
Dual Public Roles
Private employment