Advisory Opinion No. 2003-23

Re: Robert B. Boyer, PLS

QUESTION PRESENTED

The petitioner, a West Warwick Development Commission member, a municipal appointed position, requests an advisory opinion as to whether his prospective employment with Harrah’s Entertainment, Inc. constitutes a conflict of interest under the Code of Ethics.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the petitioner, a West Warwick Development Commission member, a municipal appointed position, from participating in the Development Commission’s consideration of any matters impacting Harrah’s Entertainment, Inc., given that he has an anticipated business association with that entity that triggers the prohibitions contained in R.I. Gen. Laws §§ 36-14-5(a), (b), (d) and (f).

The petitioner serves as Chairman of the West Warwick Development Commission, which makes recommendations to the Town Council, provides guidance and formulates policy toward a diversified tax base and healthy business climate in the community. He advises that Harrah’s Entertainment, Inc. (Harrah’s) presently is negotiating with the Town of West Warwick to locate a casino within the West Warwick Industrial Park. In his capacity as Chairman of the West Warwick Development Commission, the petitioner states that he has attended meetings regarding the proposed casino with the Narragansett Indian Tribe Chieftan and their legal counsel, Town Council members and representatives of Harrah’s. He indicates that Harrah’s will require photography and topography services for the remaining portion of the Industrial Park. Boyer Associates, a West Warwick professional land surveying firm owned by the petitioner’s son, Mark D. Boyer, compiled the western half of the Industrial Park and has the photography available to compile the remainder of the Park and associated areas.

The petitioner states that he has been privately employed as a professional land surveyor since 1963 and is not an employee of his son’s firm. He advises that he designed and supervised the construction of the Industrial Park and handled wetland mitigation for the area. He states that he intends to enter a contract with Harrah’s as a consultant to assist its designers and engineers with the proposed casino.

Finally, the petitioner informs that he is an appointed member of the Kent County Water Authority. In that capacity, he approves contracts, bills and invoices. Prior to his appointment, the Water Authority voted to grant water to any businesses within the Industrial Park. He states that he would recuse himself if a matter involving the proposed casino came before the Water Authority.

The Code of Ethics provides that the petitioner shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction that 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 the petitioner 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). The petitioner shall not accept other employment which will either impair his independence of judgment as to his official duties or induce him to disclose confidential information acquired by him in the course of and by reason of his official duties. See R.I. Gen. Laws § 36-14-5(b).

The petitioner may not use his public office or information received from his public office to obtain financial gain, other than that provided by law, for himself, a family member, business associate or private employer. See R.I. Gen. Laws § 36-14-5(d). Further, the petitioner must recuse himself from voting or participating in the consideration and 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.” R.I. Gen. Laws § 36-14-2(3). Finally, a public official may not accept any reward or promise of future employment in return for or based on any understanding or expectation that his or her vote, official action or judgment would be influenced thereby. See R.I. Gen. Laws § 36-14-5(g).

In past advisory opinions, the Commission has required public officials to recuse themselves from 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 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).

Here, the petitioner has expressly stated his intent to contract with Harrah’s Entertainment, Inc. as a consultant regarding the proposed West Warwick Industrial Park project. The Commission previously has concluded that a public official may not take part in his agency’s consideration of a matter involving a prospective employer or business associate. See e.g., A.O. 99-11 (advising that a Glen Farm Authority member may not participate in the Authority’s consideration of a lease proposed by a company with whom the member will work as a subcontractor). Based upon the petitioner’s anticipated business association with Harrah’s, he must recuse himself from the West Warwick Development Commission’s consideration of any matters involving Harrah’s. See R.I. Gen. Laws §§ 36-14-5(a), (b), (d), and (f). The Code requires his recusal until such time as no business relationship exists between the parties and there is no expectation of any business dealings between the parties in the near future. Notice of recusal should be filed with the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-(6).

The Commission concludes that the petitioner’s participation in West Warwick Development Commission matters impacting Harrah’s would constitute a conflict of interest in substantial conflict with his public duties and responsibilities. See R.I. Gen. Laws 36-14-5(a). It is reasonably foreseeable that the petitioner’s actions as a member of the West Warwick Development Commission would financially impact Harrah’s, his business associate under the Code of Ethics. Based upon the petitioner’s representations, his involvement in Development Commission matters involving Harrah’s would likely impair his independence of judgment as to his official duties in the public interest. See R.I. Gen. Laws 36-14-5(b). The Commission also cautions the petitioner that R.I. Gen. Laws § 36-14-5(g) prohibits him from accepting any reward or promise of future employment in return for or based on any understanding or expectation that his vote, official action or judgment would be influenced thereby.

Further, consistent with the prohibitions outlined above, the petitioner must recuse from participation and/or vote in any Kent County Water Authority matters involving Harrah’s. Finally, the petitioner indicates that his son’s company bid on a contract with the Town of West Warwick for surveying services and that Boyer Associates presently is performing sporadic surveying regarding property lines and easement lines. He indicates that at times he assist his son’s firm with such work. Although the petitioner is not an employee of Boyer Associates, he nonetheless must recuse from taking any official action, either as a member of the West Warwick Development Commission or Kent County Water Authority, on matters involving his son’s firm.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(b)

36-145 (d)

36-14-5(f)

36-14-5(g)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2002-61

2002-56

2002-31

2000-73

99-11

98-149

98-142

98-117

97-7

94-60

Keywords:

Business Associate

Private Employment

Prospective Employment