Advisory Opinion No. 2002-61

Re: Mary Jane DiMaio

QUESTION PRESENTED

The petitioner, a Westerly Town Councilor, a municipal elected position, requests an advisory opinion as to whether she may participate in the Town Council’s consideration of 1) re-zoning petitions involving an engineering firm which she has hired to perform work on her property; and 2) matters in which Lewiss Law Associates appears before the Council.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Westerly Town Councilor, a municipal elected position, must recuse from participation in the Town Council’s consideration of matters involving an engineering firm which she has hired to perform work on her property, given that they are business associates under the Code of Ethics. However, she may participate in matters in which Lewiss Law Associates represents clients before the Council, provided that there is no ongoing attorney client relationship between the petitioner and the law firm and no specific plans for representation in the near future.

The petitioner represents that she and her husband recently purchased a parcel of land and hired an engineering firm owned by Raymond Cherenzia to perform surveying and other engineering work on the property. She informs that Mr. Cherenzia’s firm represents real estate development entities and individuals with re-zone applications before the Westerly Town Council. The petitioner seeks further guidance as to whether she may participate in matters in which Lewiss Law Associates represents clients before the Town Council. She advises that the firm has represented her periodically for personal and business matters. She anticipates that the firm will continue to represent her on such matters in the future.

Under the Code, a public official 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 herself, 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.”

R.I. Gen. Laws § 36-14-5(d) further prohibits an official from using her position or confidential information received though her position to obtain financial gain, other than that provided by law, for herself, a business associate or any person within her family. 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.” R.I. Gen. Laws § 36-14-2(3).

In past advisory opinions, the Commission has required public officials to recuse themselves from participation in a matter if the official has an ongoing or anticipated business relationship with an individual or entity appearing before his or her public body. 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 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); 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).

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. 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); 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). See also A.O. 97-7; A.O. 96-68; A.O. 96-62; AO 96-30.

Based upon the facts presented, a current business association exists between the petitioner and Mr. Cherenzia’s engineering firm relative to the performance of surveying and engineering work on the petitioner’s property. The petitioner must recuse from participation in matters in which Mr. Cherenzia and/or his firm represents applicants before the Town Council. See R.I. Gen. Laws § 36-14-5(f). Additionally, the petitioner’s business associate must advise the Council of the nature of his relationship with the petitioner prior to appearing before the Council. Notice of recusal should be filed with the Ethics Commission and the Westerly Town Council pursuant to R.I. Gen. Laws § 36-14-6.

As to Lewiss Law Associates, the petitioner represents that the firm has represented her on personal and business matters over the years and she anticipates that it will continue to represent her on such matters in the future. Provided that the firm does not represent her in an ongoing matter, bills for prior representation have been paid and there are no plans for specific representation in the near future, Lewiss Law Associates and the petitioner do not have a current business association for purposes of the Code of Ethics. See A.O. 94-60 (concluding that a Planning Commission member could not participation in matters involving an engineer with whom he had past business dealings since, although there was no current project, the member anticipated that they would engage in business projects within the immediate future). Therefore, the petitioner may participate and vote in matters in which Lewiss Law Associates represents clients before the Town Council.

Code Citations:

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

Related Advisory Opinions:

2002-40
2001-4
99-95
99-78
99-11
98-159
98-142
98-141
98-117
98-25
97-112
97-7
96-100
96-68
96-62
96-30
95-81
94-60

Keywords:

Business Associate