Advisory Opinion No. 2004-31

Re: Guy J. Settipane

QUESTION PRESENTED

The petitioner, a member of the Jamestown Town Council, a municipal elected position, requests an advisory opinion as to whether he may participate in the Council’s discussion and vote on (1) the Jamestown Sewer Rehabilitation project and (2) Town litigation relating to the termination of Siegmund & Associates’ contract in connection with the Jamestown Sewer Rehabilitation project, given the fact that Siegmund & Associates previously rendered services to a family trust of which the petitioner is the sole beneficiary.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Jamestown Town Council, a municipal elected position, may participate in the Council’s discussion and vote on (1) the Jamestown Sewer Rehabilitation project and (2) Town litigation relating to the termination of Siegmund & Associates’ contract in connection with the Jamestown Sewer Rehabilitation project, provided, however, that there is no ongoing or anticipated business association between Siegmund & Associates and either the petitioner or the family trust.

The petitioner makes the following representations: In 2001, the Jamestown Town Council awarded a bid contract to Siegmund & Associates, an engineering firm, in connection with the Jamestown Sewer Rehabilitation project. Thereafter, the petitioner was elected to the Jamestown Town Council. In 2003, the Settipane Family Trust (the “Trust”) hired Siegmund & Associates to provide an opinion as to the structural integrity of an existing seawall in connection with its application to the Coastal Resource Management Council (“CRMC”). The petitioner is the sole beneficiary of the Trust. The CRMC matter is still awaiting final approval. Nonetheless, the Trust has terminated its business association with Siegmund & Associates (i.e., all bills have been paid and/or resolved) and anticipates no future business association with them. Moreover, the petitioner represents that the Trust will not, under any circumstances, call upon Siegmund & Associates to testify as an expert witness in the pending CRMC matter.

In 2004, the Town Administrator terminated Siegmund & Associates’ contract and subsequently hired a new engineering firm, Vollmer & Associates, in connection with the Jamestown Sewer Rehabilitation project. Out of an abundance of caution, the petitioner recused himself in both matters. Neither the petitioner nor the Trust has a business association with Vollmer & Associates. Neither the petitioner nor the Trust currently has a business association with Siegmund & Associates.

The petitioner now seeks an advisory opinion as to whether he may participate in the discussion and vote on (1) the Jamestown Sewer Rehabilitation project and (2) Town litigation relating to the termination of Siegmund & Associates’ contract, given the fact that the Trust previously employed Siegmund & Associates.

Under the Code of Ethics, a public official 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 official duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). A “substantial conflict” is present where a public official, a family member, a business associate, an employer, or any business which the public official represents will derive a direct monetary gain or suffer a direct monetary loss by reason of the official’s activity. See R.I. Gen. Laws § 36-14-7(a). 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).

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 public body. See A.O. 94-60 (concluding that a North Kingstown Planning Commission member may not participate in the consideration of a subdivision proposal submitted by an engineer where the member planned to engage in business projects with that engineer in the immediate future). See also A.O. 2003-23, A.O. 98-142 and A.O. 98-117. 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 (concluding that a Westerly Zoning Board member could participate in a Zoning Board’s consideration of matters involving architectural and engineering firms with which he has worked in the past provided, however, that no business association currently exists between the parties, nor is it foreseeable that they would engage in business projects within the near future). See also A.O. 2003-36, 97-112 and A.O. 96-68.

In the instant matter, there is no present business association between Siegmund & Associates and either the petitioner or the Trust. Given that no ongoing or anticipated business association exists between the parties, the Commission concludes that the petitioner may participate in the discussion and vote on both (1) the Jamestown Sewer Rehabilitation project and (2) Town litigation relating to the termination of Siegmund & Associates’ contract.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-7(a)

Related Advisory Opinions:

2003-36

2003-23

2003-17

2002-61

2002-28

98-142

98-141

98-117

97-112

97-103

97-30

97-7

96-68

96-62

Keywords:

Business associate

Recusal