Advisory Opinion No. 2003-4

Re: Caswell Cooke, Jr.

QUESTION PRESENTED:

The petitioner, a member of the Westerly Town Council, a municipal elected official, requests this advisory opinion as to whether he may participate in matters involving the Misquamicut Business Association and matters affecting businesses at Misquamicut Beach, given that the petitioner is the Executive Director of the Misquamicut Business Association (MBA) and co-owns three businesses at Misquamicut Beach.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Westerly Town Council, a municipal elected official, is prohibited from participating in matters concerning the Misquamicut Business Association given that he serves as its Executive Director. Further, the petitioner may participate in matters involving businesses that are members of the Association provided that it is not reasonably foreseeable that the petitioner will receive a direct financial benefit as a result of his official action.

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 in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if he 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). Also, Section 5(f) of the Code requires a public official to recuse himself or herself from voting or otherwise participating in the consideration and/or disposition of a matter involving a business associate. See R.I. Gen. Laws § 36-14-5(f). A "business associate" is defined as any individual or entity joined with a public official "to achieve a common financial objective." See R.I. Gen. Laws § 36-14-2(3). Finally, Commission Regulation 7003 provides that a public official may publicly express his or her own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or his or her spouse or dependent child.

The petitioner seeks this advisory opinion to determine what limitations are placed on his ability to participate and/or vote on matters, as a member of the Westerly Town Council, given his private employment as the Executive Director of the Misquamicut Business Association and as co-owner of three businesses at Misquamicut Beach which are members of the Association. First, the petitioner seeks guidance to determine whether he may participate in matters involving the Misquamicut Business Association (MBA). The petitioner advises that the MBA has two matters before the Westerly Town Council. The council is considering providing the MBA with a subsidy from the Town budget and permit applications for MBA events are before the Westerly Town Council. In past advisory opinions, the Commission has opined that public officials are "business associates," as the term is defined in R.I. Gen. Laws § 36-14-2(3), 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. If an official has such a leadership position, the Commission has required the official to recuse him or herself if the interests of the organization would be affected by an action to be taken by his public agency. See A.O. 98-44 (opining that a Commissioner of Fire Safety Code Board of Appeal and Review could not participate in appeals involving property owned by the International Association of Firefighters (Local 799) and the Providence Firefighters Realty Corporation since the petitioner, who held a position with both entities that would permit him to affect the financial objectives of the organization, had a business association relationship with the organizations). Here, the petitioner, as the Executive Director, is in a position to affect the interests of the MBA. His relationship with the MBA, therefore, constitutes a business association that triggers the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(f). To comply with the Code of Ethics, the petitioner must recuse from participating in any matters involving the MBA under the procedures set forth in R.I. Gen. Laws § 36-14-6, including the vote on a Town subsidy to the MBA and approval of permits for MBA events.

Second, the petitioner seeks guidance as to whether he is prohibited from participating in matters involving businesses that are members of the MBA. In past advisory opinions, the Commission has held that mere membership in an organization does not rise to the level of a business association. The petitioner, as Executive Director, is a business associate of the MBA and not of the individual members of the Association. As such, the petitioner may participate in matters that involve businesses that are members of the MBA. See A.O.98-89 (concluding that a Narragansett Town Councilor may participate and/or vote on whether to provide Town funding to the Narragansett Chamber of Commerce, where the real estate rental company he and his spouse operate is a member organization of the Chamber). Furthermore, the petitioner may participate in any matter involving any organization for which he is a member, provided that he is not in a leadership position that would permit him to affect the financial objectives of the organization. Additionally, no provision of the Code prohibits the petitioner from serving as liaison to the Westerly Pawcatuck Chamber of Commerce.

Third, the petitioner seeks guidance as to whether he may participate in Outside Entertainment Ordinances that affect all establishments in Westerly, given that he is a part-time disc jockey in Westerly. Under the Code of Ethics, a public official is prohibited from participating in any matter where it is reasonably foreseeable that he will derive a direct financial gain or suffer a direct financial loss by reason of his official activity. R.I. Gen Laws §§36-14-5(a); 7(a). The petitioner represents that his employment as a disc jockey would be affected by the proposed ordinances. Since the petitioner would have a financial interest in the proposed ordinances, he is prohibited from participating in the Council’s consideration of such matters.

Fourth, the petitioner seeks guidance as to whether he may participate in matters involving the Town Beach located in Misquamicut Beach but not affiliated with the MBA or his businesses. The Commission has issued previous advisory opinions addressing similar issues. The Commission has advised members of town and city councils with interests in retail and restaurant establishments that the law did not prohibit them from serving on the town or city council and, generally, from considering matters relating to the zoning or licensing of such establishments. The Commission further has advised, however, that when an issue came before the council involving a competing business that was in reasonably close proximity to the official’s own, or that otherwise directly impacted the business in which the official had an economic interest, recusal was required in accordance with R.I. Gen. Laws § 36-14-6. See, e.g., A.O. 99-9 (advising a member of the Narragansett Town Council who owns a restaurant holding a liquor license that he should not participate in matters that directly affect his business and further advising that a direct impact is presumed for any establishment within a close proximity to or otherwise in direct competition with his restaurants); A.O. 96-70 (finding that a member of the Newport City Council must recuse himself from zoning or licensing matters that concern other restaurants, bars and businesses that are in close proximity to or otherwise directly impact the petitioner’s business). Therefore, the petitioner may participate in matters involving the future of the Town Beaches provided that it is not reasonably foreseeable that matters concerning the Town Beaches will have a direct financial impact upon the petitioner’s businesses as well as upon his competitors.

Finally, pursuant to Regulation 7003, the petitioner may publicly express his own viewpoint in a public forum on any matter of general public interest or which directly affects him, his spouse or dependent children. Therefore, he may address the Town Council regarding issues that pertain to the MBA or businesses in Westerly during a public meeting at which members of the public are invited to speak about the issue. However, he may not receive special access or priority not available to any other member of the public. He is cautioned against using the public forum exception to circumvent Section 5(e)’s prohibition against appearing before one’s own board while serving and for one year thereafter. See RI Gen. Laws §36-14-5(e). We further caution the petitioner that he may not in any way use his position improperly to influence members of the Town Council. See R.I. Gen. Laws 36-14-5(d).

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(d)

36-14-5(f)

36-14-5(e)

36-14-6

36-14-7(a)

36-14-7003

Related Advisory Opinions:

2002-23

2002-6

99-9

98-93

98-89

98-76

98-44

96-70

Keywords:

Business associate

Membership

Private Employment

Public Forum Exception