Advisory Opinion No. 2003-54

Re: Davison Bolster

QUESTION PRESENTED

The petitioner, a Warren Planning Board member, a municipal appointed position, requests an advisory opinion as to whether he may participate in the Planning Board’s consideration of matters involving an applicant with whom he has worked in the past.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Warren Planning Board member, a municipal appointed position, may participate in the Planning Board’s consideration of matters involving an applicant with whom he has worked in the past provided, however, that no business association currently exists between the parties, and that it is not foreseeable that they would engage in business projects within the near future.

The petitioner represents that he is self-employed as an architectural illustrator. He informs that he prepared illustrations for a company who is currently before the Planning Board for an application to develop waterfront property. However, he represents that while he did prepare illustrations for this development, the company did not use his illustrations for the application. He informs that all bills have been paid and he does not anticipate doing work for this company in the future.

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). He also is prohibited 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 business associate, or any business by which he is employed or represents. See R.I. Gen. Laws § 36-14-5(d). 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).

Further, the Code prohibits the petitioner from accepting other employment which would impair his independence of judgment or require him to disclose confidential information acquired by him in the course of his official duties. See R.I. Gen. Laws § 36-14-5(d). 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.

In past advisory opinions, the Commission has required a public official to recuse himself from consideration of matters if the official has an ongoing or anticipated business relationship with an individual or entity appearing before his public body. See A.O. 2002-31 (concluding that a member of the East Greenwich Planning Board could not participate in the Planning Board’s consideration of matters involving a developer where the submitted plans were prepared by a firm for which he currently performs consulting work). However, the Commission has permitted public officials to participate in matters involving a former business associate if it is clear that the business relationship has terminated and that the parties do not anticipate any future business dealings. See A.O. 98-141 (opining that a member of the Westerly Zoning Board could participate in the Zoning Board’s consideration of matters involving architectural and engineering firms with which he has worked in the past given that there is no current business association and it is not foreseeable that they would engage in business projects within the near future).

Consistent with these past advisory opinions and based upon the representations made by the petitioner, it is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Warren Planning Board, may participate in the Planning Board’s consideration of matters involving an applicant with whom he has worked in the past given that no business association currently exists between the parties and it is not foreseeable that they would engage in business projects within the near future.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(f)

36-14-7(a)

Related Advisory Opinions:

2003-36

2003-17

2002-13

98-141

98-117

97-112

97-103

97-7

Keywords:

Business associate

Private employment

Recusal