Advisory Opinion No. 2002-31

Re: Dale S. Plante

QUESTION PRESENTED

The East Greenwich Town Solicitor requests an advisory opinion on behalf of the petitioner, an East Greenwich Planning Board member, a municipal appointed position, as to whether he may participate and/or vote on matters involving a developer where the submitted plans were prepared by a firm for which he currently performs consulting work.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, an East Greenwich Planning Board member, a municipal appointed position, may not participate in the Zoning Board’s consideration of matters involving a developer where the submitted plans were prepared by a firm for which he currently performs consulting work

The petitioner advises that he is a registered landscape architect and has been self-employed since 1988. He represents that he currently performs consulting work for Beckman/Weremay Ltd., landscape architects. He states that developer Gerald Zarrella presently has a subdivision plan before the East Greenwich Planning Board. An employee from Beckman/Weremay prepared the planting design for this subdivision. The petitioner states that his consultant work for Beckman/Weremay involves public sector clients and he had no involvement in the private subdivision before the Planning Board.

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 and employment in the public interest. See R.I. Gen. Laws §§ 36-14-5(a) and 7(a). He also 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). 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(b) of the Code further 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. 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.

In past advisory opinions, the Commission has required public officials to recuse themselves from a matter if the official has an ongoing or anticipated business relationship with an individual or entity appearing before his or her public body applicant. See 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. 97-7 (concluding that a member of the Individual Sewage Disposal System Technical Review Committee must recuse himself from consideration of matters where the member currently provides consulting work for the company that is before the Board); 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.

Here, the petitioner currently performs consulting work for Beckmen/Weremay and, therefore, is a business associate of that firm under the Code of Ethics. Accordingly, he must recuse himself from the Planning Board’s consideration of any matters involving Beckmen/Weremay. See R.I. Gen. Laws §§ 36-14-5(a),(b),(d), and (f). The Code requires his recusal until such time as no business relationship exists between the parties and there is no expectation of any business dealings between the parties in the near future. Notice of recusal should be filed with both the East Greenwich Planning Board and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-(6).

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:

99-11
98-142
98-141
98-117
98-25
97-112
97-103
97-7
96-100
96-68
96-62
96-30
96-20
95-61
94-60
94-10

Keywords:

Business associate
Business interest
Financial interest
Recusal