Advisory Opinion No. 2002-71

Re: Richard E. Kirby, Esq.

QUESTION PRESENTED

The petitioner, the Town of Cumberland Assistant Solicitor, a municipal appointed position, requests an advisory opinion as to whether his business partner may appear before the Cumberland Zoning Board to petition for a special use permit relative to property that they wish to develop, given that he serves as legal counsel to the Board.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Town of Cumberland Assistant Solicitor’s business partner from appearing before the Cumberland Zoning Board to petition for a special use permit for property that they wish to develop, provided that the petitioner recuses from participation in the Zoning Board’s consideration of said application.

The petitioner is the Assistant Solicitor for the Town of Cumberland and also serves as Chairperson of the Rhode Island Ethics Commission. In his capacity as Assistant Solicitor, he advises that he represents the Town in State and Federal Courts, drafts Town ordinances and resolutions and serves as legal counsel to the Planning and Zoning Boards. He informs that he and a private developer are presently involved in a business partnership regarding property outside of the Town of Cumberland. He states that they also have entered into a purchase and sales agreement for commercial property located within the Town that is zoned for commercial use.

The petitioner indicates that a national corporation has approached them about locating a gas station on that property. He advises that the property could be used for such purpose upon obtaining a special use permit from the Zoning Board. He inquires whether his business partner may appear before the Zoning Board with independent counsel to petition the Board for a special use permit. He represents that he would not sit as the Zoning Board’s legal counsel at the time it considers the petition and would not discuss the matter with any members of the Board. Finally, he notes that he is appointed by the Mayor, with Town Council approval, and does not vote on applications before the Zoning Board. The Mayor appoints the Zoning Board members to staggered terms.

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). The petitioner will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a). R.I. Gen. Laws § 36-14-5(d) prohibits the petitioner 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 family member, business associate, or any business by which he is employed or represents. 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).

Further, the petitioner may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. See R.I. Gen. Laws § 36-14-5(e)(1), (2). Section 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner has officially severed his position with the agency. This “revolving door” language is provided so as to minimize any influence the former public official or employee may have in a consideration by his former agency that is not available to the general public. Pursuant to R.I. Gen. Laws § 36-14-5(f), no business associate of the petitioner shall represent himself or any other person before the state or municipal agency of which the petitioner is a member or by which he is employed unless he first advises the agency of the nature of his relationship with the petitioner and the petitioner recuses from participating in the agency’s consideration and disposition of the matter.

The Commission consistently has concluded that under the very strict, but very clear, language of Section 5(e) public officials and employees may not appear before their own agency or board before the expiration of one year from their date of separation. Here, however, the petitioner is neither a member of the Cumberland Zoning Board nor does he wish to appear before that Board. Rather, he serves as legal counsel to the Zoning Board in his capacity as the Assistant Town Solicitor and, as such, is an appointed official in the Town of Cumberland. He represents that his business partner wishes to appear before the Zoning Board to seek a special use permit relative to commercial property that they wish to develop within the municipality. Given that the petitioner would not be appearing before a state or municipal agency of which he is a member or by which he is employed, his business partner’s appearance before the Zoning Board would not trigger the prohibitions contained in Section 5(e).

The petitioner and his business partner are “business associates” as defined by the Code of Ethics as they are joined together to achieve a common financial objective. See R.I. Gen. Laws § 36-14-2(3). Pursuant to R.I. Gen. Laws § 36-14-5(f), the petitioner’s business associate shall not represent himself or any other person before any state or municipal agency of which the petitioner is a member or by which he is employed, subject to two conditions. Specifically, the business associate first must advise the agency of the nature of his business relationship with the petitioner. Secondly, the petitioner must recuse from participating in the agency’s consideration and disposition of the matter at issue. See R.I. Gen. Laws § 36-14-5(f). As discussed supra, the petitioner is neither a member of the Zoning Board nor an employee of same. Therefore, the prohibitions contained in Section 5(f) similarly do not apply to his business associate’s appearance before the Zoning Board.

Although Sections 5(e) and 5(f) of the Code are inapplicable to the instant matter, the Commission concludes that the petitioner must recuse from the Zoning Board’s consideration of his business associate’s application for a special use permit pursuant to R.I. Gen. Laws §§ 36-14-5(a) and 5(d). Clearly, the petitioner has a direct financial interest in the outcome of the petition before the Zoning Board. Here, the petitioner specifically represents that he would not sit as legal counsel to the Board during the consideration of the subject permit. Consistent with that representation, the Commission finds that no violation of the Code of Ethics would occur by reason of his business associate’s appearance before the Cumberland Zoning Board. Notice of recusal should be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(d)

36-14-5(e)

36-14-5(f)

36-14-6

36-14-7(a)

Keywords:

Business Associate

Recusal

Property Interest

Revolving Door