Advisory Opinion No. 2003-17

Re: Steve Gregson

QUESTION PRESENTED

The petitioner, an East Greenwich School Committee member, a municipal elected position, requests an advisory opinion as to whether he may participate in the hiring of an attorney who has represented his businesses on a recurring basis for over 30 years.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, an East Greenwich School Committee member, a municipal elected position, may participate in the hiring of an attorney who has represented his businesses on a recurring basis for over 30 years, provided that there is no ongoing attorney client relationship between the petitioner and the attorney and no specific plans for representation in the near future.

The petitioner represents that he is the vice-president and general manager of Packings & Insulation Corporation and PIC Contractors. He advises that Attorney Girard Visconti has represented both companies on a recurring basis since 1968. He informs that Attorney Visconti does not prepare or file corporation papers, but represents him in construction litigation. He states that Attorney Visconti’s last represented him 3 years ago. While there are no current plans for representation in the future, he indicates that if such matters were to arise he would seek Attorney’s Visconti’s representation. He informs that the East Greenwich Town Manager has made a recommendation to the School Committee to engage Mr. Visconti as legal counsel to represent them in an ongoing construction dispute. The petitioner seeks this advisory opinion to determine whether he may participate in the selection of Girard Visconti to represent the School Committee in this matter.

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 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). Additionally, the Code provides that the petitioner has reason to believe or expect a conflict of interest exists if it is "reasonably foreseeable" that he, a family member, employer, or business associate will be financially impacted. To be "reasonably foreseeable" the probability must be greater than "conceivable," but the impact need not be certain to occur. See Commission Regulation 36-14-6001.

Further, R.I. Gen. Laws § 36-14-5(d) prohibits an official from using his position or confidential information received though his position to obtain financial gain, other than that provided by law, for himself, a business associate or any person within his 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 himself from voting or otherwise participating in his 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; A.O. 96-30.

Here, the petitioner represents that Attorney Visconti has represented his companies on a recurring basis since 1968 and anticipates that he will continue to represent them in the future. However, provided that Attorney Visconti does not represent him in an ongoing matter, bills for prior representation have been paid and there are no plans for specific representation in the near future, Attorney Visconti and the petitioner do not have a current business association for purposes of the Code of Ethics. See A.O. 2002-61 (concluding that a Westerly Town Councilor may participate in matters involving Lewiss Law Associates provided that there is no ongoing attorney client relationship between the petitioner and the law firm and there are no specific plans for representation in the near future). Therefore, the petitioner may participate in the hiring of Attorney Visconti to represent the School Committee in an ongoing construction dispute.

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:

2002-61

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