Advisory Opinion No. 2002-76

Re: Mark A. McSally, Esq.

QUESTION PRESENTED

The petitioner, the Town Solicitor for the Town of Narragansett, a municipal appointed position, requests an advisory opinion as to whether he may render legal advice to the Narragansett Zoning Board in an appeal involving a limited liability company, a member of which is also a shareholder and director of one of the petitioner's private, corporate clients.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Town Solicitor for the Town of Narragansett, a municipal appointed position, may render legal advice to the Narragansett Zoning Board in an appeal involving a limited liability company, a member of which is also a shareholder and director of one of the petitioner's private, corporate clients. This opinion is based upon the fact that petitioner's relationship with the limited liability company appearing before the Zoning Board is not that of a business association and is too remote to trigger the conflict of interest provisions of the Code of Ethics.

The petitioner represents that in his private law practice he represents a Rhode Island corporation known as Green Hill Builders, Inc. (hereinafter "Green Hill"). One of the shareholders and officers of Green Hill is Thomas Santilli. Mr. Santilli is also a member of a Rhode Island limited liability company, Point Judith Land Company, LLC (hereinafter "Point Judith, LLC"). The petitioner states that he has never represented Point Judith, LLC, and does not anticipate providing it with representation in the future.

Point Judith, LLC is presently involved in an appeal to the Town of Narragansett Zoning Board from a decision of the Planning Board. The petitioner states that in the normal course of affairs, as Town Solicitor he would provide legal advice to the Zoning Board relative to its consideration of this appeal. The petitioner asks whether he must recuse from participating in the Point Judith, LLC appeal given the fact that one of its members (Mr. Santilli) is a director and shareholder of a corporation (Green Hill) that is one of his private clients.

Pursuant to the Code of Ethics, a public official may not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction which is in substantial conflict with the proper discharge of his/her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if it is reasonably foreseeable that he/she, or a business associate, or any business by which he/she is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his/her official activity. R.I. Gen. Laws § 36-14-7(a); Regulation 36-14-7001. The Code provides that a business associate may not appear before the public official unless the associate first advises the agency of the nature of his/her business relationship with the public official and the public official recuses himself from voting on or otherwise participating in the consideration or disposition of the matter at issue. R.I. Gen. Laws § 36-14-5(f). Additionally, the official may not use his/her public office or confidential information received through his/her holding public office to obtain financial gain, for himself/herself, a business associate or any business which the person represents. R.I. Gen. Laws § 36-14-5(d).

A business associate relationship exists under the Code where two individuals are joined together to achieve a common financial objective. R.I. Gen. Laws § 36-14-2(3). Numerous past advisory opinions have recognized that that an ongoing attorney-client relationship creates a business association. See A.O. 98-35 and advisory opinions cited therein. Accordingly, the petitioner is a business associate of Green Hill, his corporate client. Mr. Santilli is also considered to be a business associate of Green Hill, given his position as a Green Hill corporate officer. See A.O. 2002-6 (public officials are "business associates of entities for which they serve either as members of the Board of Directors or in other leadership positions that permit them to affect the financial objectives of the organization). Similarly, Mr. Santilli would likely be considered a business associate of Point Judith, LLC by reason of his status as an LLC member. However, the mere fact that the petitioner is a business associate of Green Hill does not automatically make him a business associate of any of Green Hill's other business associates, such as Mr. Santilli, or of Mr. Santilli's other business associates, such as Point Judith, LLC. Because petitioner is not joined together with either Mr. Santilli or Point Judith, LLC to achieve a common financial objective, the Code of Ethics does not consider the petitioner to be a business associate of either. These relationships are simply too remote.

For these reasons, the Code of Ethics does not prohibit the petitioner from rendering legal advice to the Narragansett Zoning Board relevant to matters involving Point Judith Land Company, LLC.

Code Citations:

36-14-2(3)
36-14-5(a)
36-14-5(d)
36-14-5(f)
36-14-7(a)
36-14-7001

Keywords:

Business associate
Client's interest