Advisory Opinion No.2004-26

Re: Lucien E. Benoit, D.D.S.

QUESTION PRESENTED:

The petitioner, a member of the North Smithfield Planning Board, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics requires his recusal from participation in Board matters in which the petitioner's former, private attorney appears.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the North Smithfield Planning Board, a municipal appointed position, is not required to recuse from participation in Board matters in which his former, private attorney appears.

The petitioner is the Chairman of the North Smithfield Planning Board. He represents that he previously engaged the legal services of attorney Michael A. Kelly regarding a matter outside of North Smithfield. The petitioner states that this legal representation has been completed, and that there are no other matters for which attorney Kelly is providing the petitioner with legal representation.

The petitioner notes that attorney Kelly occasionally represents clients before the North Smithfield Planning Board. The petitioner asks whether he is required to recuse from participating in these matters given his former retention of attorney Kelly.

Under the Code of Ethics, a public official may not participate in a matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his public duties. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest is present if the official has reason to believe or expect that he, a member of his family, or any business associate will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. R.I. Gen. Laws § 36-14-7(a). 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 association and the official recuses himself from voting or otherwise participating in his agency's consideration of the matter at issue. R.I. Gen. Laws § 36-14-5(f). A business associate is defined as an individual or business entity joined with an official to achieve a common financial objective. See R.I. Gen. Laws §§ 36-14-2(3) and 2(7).

Previously, the Commission has concluded that an ongoing attorney-client relationship creates a business association that triggers the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(f). See e.g., A.O. 98-142; A.O. 98-56; A.O. 98-42 and A.O. 98-25. Conversely, the Commission consistently has found that no 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.

In the instant matter, the petitioner represents that the attorney/client relationship between himself and attorney Kelly has terminated. Provided that bills for prior representation have been paid, and provided that there are no plans for specific representation in the future, the petitioner and attorney Kelly do not have a current business association for purposes of the Code of Ethics. Therefore, the petitioner may participate and vote in matters in which attorney Kelly appears and represents applicants before the North Smithfield Planning Board.

Code Citations:

36-14-2(3)

36-14-2(7)

36-14-5(a)

36-14-5(f)

36-14-7(a)

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