Advisory Opinion No. 2002-52

Re: Patrick A. Rogers, Esq.

QUESTION PRESENTED

The petitioner, an East Providence City Councilor, a municipal elected position, requests an advisory opinion as to whether he may participate in matters that involve a client of the firm by which he is employed.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, an East Providence City Councilor, a municipal elected position, may participate in matters that involve a client of the firm by which he is employed. The petitioner’s relationship with his employer’s business associate is too remote to implicate the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(d).

The petitioner is a member of the East Providence City Council and is employed as an associate attorney at Edwards & Angell, LLP (“E&A”). He represents that he is a salaried employee, and his compensation is not based upon the profitability of any particular client or the firm as a whole. He states that the firm has seven law offices in six states and has approximately 280 full- time attorneys. He advises that a client based in New York (the “Company”) has engaged E&A to provide legal services, primarily related to real estate and the environment, in connection with a project in East Providence. The petitioner informs that he practices corporate law and does not practice in the real estate development or environmental practice areas. He represents that he would not be performing any legal services for the Company. Furthermore, E&A would not represent the Company in matters before the East Providence City Council, or before any of the City’s other boards or commissions, including its Zoning and Planning boards. The Company will engage separate local counsel for such matters.

Pursuant to 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). A substantial conflict of interest occurs if the petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). He may not accept employment that will impair his judgment as to his official duties. See R.I. Gen. Laws § 36-14-5(b). Further, he 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 a family member. See R.I. Gen. Laws § 36-14-5(d). “Business associate” is defined as any individual or entity joined with a public official or employee “to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). Finally, Commission Regulation 36-14-5002 requires an official to recuse himself whenever his employer or the interest of his employer comes before his board or agency.

While the Company appearing before the East Providence City Council has engaged E&A to perform legal services relative to a project within the City, E&A would not be representing the Company before the Council, or before any other municipal boards or commissions. The petitioner expressly represents that he would not perform any services for the Company. Further, as a salaried employee of E&A, he represents that he would not be financially impacted by his firm’s representation of the Company. Here, the relationship between the petitioner and the Company does not rise to the level of a business association as that term is defined in § 36-14-2(3). The Company is a business associate of E&A, rather than of the petitioner. As such, the connection between the petitioner’s actions as an East Providence City Councilor and his employer’s business associate is too remote to trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(d). See A.O. 99-27 (finding that a Narragansett Planning Board member may participate in the review of an application notwithstanding the fact that the applicant's lawyer is legal counsel to the petitioner's private employer); A.O. 98-17 (concluding that an alternate Cranston Zoning Board member may participate in matters where a party's attorney is the same lawyer who provides legal services to the petitioner's private employer). Accordingly, the petitioner may participate in the City Council’s consideration of matters involving a client of the firm by which he is employed, as there is no opportunity for any of his private financial interests, or those of his employer, to impair his independence of judgment with respect to his public duties. See R.I. Gen. Laws §§ 36-14-5(a), (b) and (d).

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

36-14-5002

Related Advisory Opinions:

2002-14

2001-15

2000-79

2000-65

99-27

99-26

98-17

96-73

96-6

93-21

Keywords:

Business associate

Contracts

Private employment