Advisory Opinion No. 2005-34

Re:  Peter Fogarty, CPA, CFE

QUESTION PRESENTED:

The petitioner, a member of the Smithfield Zoning Board of Review, a municipal appointed position, requests an advisory opinion as to whether he may participate in and vote on the Board’s consideration of an application to construct a new medical building filed by a group of doctors, despite the fact that the petitioner is a patient of one of the doctors in the group.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Smithfield Zoning Board of Review, a municipal appointed position, may participate in and vote on an application to construct a new medical building filed by a group of doctors, despite the fact that the petitioner is a patient of one of the doctors in the group.

The petitioner is a member of the Smithfield Zoning Board of Review (“Zoning Board”).  He informs that presently pending before the Zoning Board is a zoning application filed by Sanderson Associates, LLC (“Sanderson”).   The application is for Special Use Permits which would allow Sanderson to construct a medical building within the Town of Smithfield.  The petitioner advises that he is presently a patient of Dr. Jacobs who has been the petitioner’s primary physician for the past seven (7) years.  Doctor Jacobs is a member of Sanderson.  The petitioner represents that his medical insurance pays for his visits to Dr. Jacobs and that he does not have a personal relationship with Dr. Jacobs, outside of the doctor-patient relationship.  The petitioner seeks guidance from the Commission as to whether the doctor-patient relationship would preclude him from participating in and voting on the application before the Zoning Board.

Under the Code of Ethics, a public official may not participate in any matter in which he or she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his or her duties in the public interest.  See R.I. Gen. Laws §§ 36-14-5(a).  A public official will have an interest in substantial conflict with his or her official duties if he or she has a reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his or her official activity, to himself/herself, a family member, a business associate, an employer, or any business which he or she represents.  See R.I. Gen. Laws § 36-14-7(a). 

Further, pursuant to R.I. Gen. Laws § 36-14-5(d), a public official also is prohibited from using his or her public position or confidential information received through his or her position to obtain financial gain, other than that provided by law, for himself or herself, a business associate, or any business in which the official is employed or which the official represents.  The Code of Ethics defines “business associate” as a person joined together with another person to achieve a common financial objective.  See R.I. Gen. Laws § 36-14-2(3).

In the instant matter, the above provisions of the Code do not apply because we do not consider the petitioner and his physician to be “business associates” as defined by the Code.  There is no indication that the petitioner has joined with his physician to achieve a common financial objective. Rather, their relationship appears to be typical of any doctor and patient.  Accordingly, the petitioner is not prohibited from participating in the Zoning Board’s consideration of the application filed by the business entity in which his physician is a member.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(d)

36-14-5(f)

36-14-7(a)

Related Advisory Opinions:

2001-68

2000-95

Keywords:

Recusal

Business Associate