Advisory Opinion No. 2002-40

Re: Robin L. Main Esq.

QUESTION PRESENTED

The petitioner, a Rhode Island Ethics Commission member, a state appointed position, requests an advisory opinion regarding her ability to participate in the consideration of matters involving Operation Clean Government (OCG) and Attorney Lauren Jones as complainant and respondent’s counsel, respectively, given that Attorney Jones previously represented the petitioner in a complaint filed by OCG.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Rhode Island Ethics Commission member, a state appointed position, may fully participate in the consideration of matters involving Operation Clean Government (OCG) and Attorney Lauren Jones, notwithstanding Attorney Jones’ prior representation of her in a complaint filed by OCG. The petitioner’s prior relationships with OCG and Attorney Jones do not trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(f).

The petitioner is a member of the Rhode Island Ethics Commission. She advises that in June 2000 Operation Clean Government (OCG) filed a complaint against her with the Commission, in which Lauren E. Jones, Esq. represented her. She indicates that the Commission dismissed that complaint in April 2001 and Attorney Jones has not represented her in any capacity since then. Further, all legal fees related to his representation of her were paid in full in December 2001. The petitioner inquires whether she may participate in the Commission’s consideration of matters involving OCG as complainant and Attorney Jones as respondent’s counsel that proceed beyond initial determination. She notes that initial determination is based solely upon the complaint itself. On August 2, 2002 a hearing will be held before the Commission involving Attorney Jones’ representation of a state official against whom a complaint filed by OCG recently was dismissed.

Under the Code, a public official or employee 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 in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). The petitioner will have an interest in substantial conflict with her official duties if she has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of her official activity, to himself, a family member, a business associate, an employer, or any business which she represents. See R.I. Gen. Laws § 36-14-7(a). Commission Regulation 36-14-6001 provides that a public official has reason to believe or expect that a conflict of interest exists when it is “reasonably foreseeable.” Also, an official may not participate in a matter concerning or presented by a business associate unless the associate first advises the official's agency of the nature of the relationship and the official recuses herself from voting or otherwise participating in her agency's consideration of the matter at issue. See R.I. Gen. Laws § 36-14-5(f). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” See R.I. Gen. Laws § 36-14-2(3).

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 that 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); and A.O. 94-60 (concluding that a member of the North Kingstown Planning Commission may not participate in the consideration of a subdivision proposal submitted by an engineer where the member planned to engage in business projects within the immediate future with that engineer).

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 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. 97-112 (finding that North Providence Town Councilors may consider an application for Town Solicitor from an attorney who had represented them privately in complaint proceedings before the Ethics Commission, provided that the attorney/client relationship has ended); A.O. 98-25 (opining that a Bristol Planning Board member may participate in a matter in which an attorney represents an applicant before that Board, despite the fact said attorney previously represented the member on an unrelated matter). Also A.O. 97-7; A.O. 96-68; AO 96-62; AO 96-30.

Based upon the facts presented by the petitioner, no familial or private business association exists between the petitioner and either OCG or Attorney Jones that would bar her participation in the matter at issue. As to Attorney Jones, the petitioner represents that no current attorney/client relationship exists between them and his legal bill was paid in full in December 2001. Accordingly, they are no longer “business associates” pursuant to the Code of Ethics. Further, the fact that OCG previously filed a complaint against the petitioner does not create an inherent conflict of interest under the Code of Ethics, without additional evidence implicating the specific prohibitions set forth in R.I. Gen. Laws § 36-14-5. In an analogous prior opinion, the Commission concluded that the Code did not prohibit the New Shoreham Town Solicitor from acting as legal counsel to the Zoning Board on an application where the applicant had filed a complaint against the Solicitor with the Ethics Commission. E.g., A.O. 98-27.

Here, the petitioner does not have reason to believe or expect that a direct financial gain or a direct financial loss would accrue to herself, her family, or a business associate by reason of her participation in a complaint matter involving OCG and Attorney Jones. Without the existence of a relationship covered by the Code of Ethics (e.g., business associate, family, or employer) or a quid pro quo arrangement indicating that the petitioner’s judgment would be affected due to the receipt of a gift, loan, reward or promise of future employment, the provisions of the Code of Ethics do not prohibit her from participating in the Commission’s consideration of this matter at any stage of proceeding. See A.O. 2001-24 (concluding that a Town Councilor employed by the Secretary of State’s Office may participate in Council matters involving property owned by the Secretary of State’s Deputy Chief of Staff, given that they do not have a familial relationship and no business association exists between the parties); A.O. 99-40 (holding a Woonsocket Personnel Board member may participate in matters involving the Woonsocket Police Department notwithstanding that he previously served as Chief of that Department’s Reserve Force and has an existing social relationship with someone in the Department); A.O. 92-72 (finding a Middletown Zoning Board member could participate in matter where a social relationship but no business relationship exists with applicant provided that the Council member could act in an impartial manner concerning that person’s application).

Finally, 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, nor do the constitutional provisions that mandated the creation of the Ethics Commission establish that an appearance of impropriety constitutes a violation of the law. Therefore, while this Commission may recommend that the petitioner publicly disclose the nature of her prior relationships with the parties at issue and the basis upon which she intends to participate, the law does not require her recusal.

Code Citations:

36-14-2(3)
36-14-5(a)
36-14-6
36-14-7(a)
Regulation 36-14-6001

Related Advisory Opinions:

2001-71
2001-70
2001-34
2001-4
99-95
99-78
98-159
98-142
98-64
98-56
98-27
98-25
97-112
96-100
96-68
96-62
96-30
94-60
94-26

Keywords:

Business associate
Code jurisdiction
Financial interest