Advisory Opinion No. 2003-21

Re: Alfred W. DiOrio

QUESTION PRESENTED

The petitioner, a Hopkinton Planning Board member, a municipal appointed position, requests an advisory opinion as to whether his surveying firm may prepare plans and submit applications on behalf of clients that appear before the Hopkinton Planning Board given that he is a member of the Hopkinton Planning Board.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner’s firm from preparing plans or submitting applications on behalf of clients appearing before the Hopkinton Planning Board provided that the petitioner recuses from participation in the Planning Board’s consideration of such matters.

The petitioner is a member of the Hopkinton Planning Board and is the president and principal surveyor of Alfred W. DiOrio, RLS, Inc., a professional land surveying and land-use consulting firm. He advises that his firm completed an application package for a minor subdivision on behalf of a client appearing before the Hopkinton Planning Board. The petitioner was issued past advisory opinions advising him that the Code of Ethics did not prohibit him from preparing plans for clients that appeared before the Hopkinton Planing Board provided that he recused himself from any participation in any pending matter before his board involving his clients. See A.O 86-26 and A.O. 92-13. However, in those past advisory opinions, the petitioner represented that it was not his practice to prepare or file applications on behalf of clients before the Planning Board. The petitioner now seeks guidance as to whether he may prepare or file applications on behalf of clients appearing before the Hopkinton Planning Board.

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.

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. Additionally, 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 not appearing before his own Board. Rather, the petitioner’s firm is performing a variety of land-use related technical services and preparing subdivision applications that are submitted to the Planning Board. 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 client’s use of material prepared by his firm would not trigger the prohibitions contained in Section 5(e).

In past advisory opinions, the Commission has opined that an official must recuse from participation in matters where he rendered services in his private capacity. See A.O. 96-119 (advising that a Principal Sanitary Engineer with the Rhode Island Department of Environmental Management should recuse himself from participation in matters where he has surveyed or rendered services in his private capacity); and A.O. 99-39 (opining that an East Greenwich Alternate Building Official may provide architectural design services to East Greenwich residents provided that he recuse from participating in the review and/or inspection of any projects with which he was involved through his private employment).

Consistent with past advisory opinions, it is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner from preparing plans or applications for clients that appear before the Hopkinton Planing Board provided that he recuses himself from any participation in any pending matter before his board involving his clients. Notice of recusal should be filed with the Hopkinton Planning Board and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-5(a)

36-14-5(d)

36-14-5(e)

36-14-5(f)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2002-71

99-39

96-119

92-13

86-26

Keywords:

Revolving Door

Private employment