Advisory Opinion No. 2005-47 Re: Bruce J. Santa Anna QUESTION PRESENTED: The petitioner, a member of the North Smithfield Planning Board, a municipal appointed position, requests an advisory opinion as to whether he may participate in and vote on the Board’s consideration of revisions to a Master Plan for a proposed commercial development in the Town of North Smithfield, despite the fact that the petitioner is a patient of a doctor who is opposed to the proposed development. 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, may participate in and vote on the Board’s consideration of revisions to a Master Plan for a proposed commercial development in the Town of North Smithfield, despite the fact that the petitioner is a patient of a doctor who is opposed to the proposed development. The petitioner is a member of the North Smithfield Planning Board (“the Planning Board”). He informs that presently pending before the Planning Board are revisions to a Master Plan for a commercial development known as “DowlingVillage.” The petitioner advises that the original Master Plan was approved by the previous Board and is now being presented to the current Board for approval of revisions made to the Plan. The petitioner informs that he was not a member of the previous Board and did not vote on the original Master Plan. The petitioner advises that he has been a patient of Dr. Daniel J. Becker, a chiropractor physician, since 1997. Doctor Becker is a member of a grass roots organization called “Valley Alliance for Smart Growth” which has filed a civil action against the Town of North Smithfield, the Chairman of the Planning Board, the Town Council, the Planning Board and Bucci Development, Inc. (“Bucci Development”) who is the developer of DowlingVillage. The lawsuit, according to the petitioner, concerns issues presented and voted upon prior to his appointment to the Planning Board. The petitioner represents that he was not aware that Dr. Becker was a member of Valley Alliance until April 2005 during a chiropractic session when Dr. Becker briefly mentioned an article which was published in local newspapers concerning the DowlingVillage development and the negative impact it would have on the community. The petitioner represents that he did not comment one way or another about Dr. Becker’s article. The petitioner further represents that since becoming aware of Dr. Becker’s affiliation with Valley Alliance and the pending civil action, he has not discussed the development with Dr. Becker. Finally, the petitioner represents that Dr. Becker’s comments would not affect his decision on the development matter in any way. The petitioner informs that Bucci Development has requested that the petitioner recuse himself from all Planning Board matters which concern DowlingVillage based upon the petitioner’s doctor/patient relationship with Dr. Becker. The petitioner seeks guidance from the Commission as to whether this doctor/patient relationship would preclude him from participating in and voting on the revisions to the Master Plan which will be presented to the 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. See A.O. 2005-34 (concluding that a doctor and patient are not considered to be business associates as defined by the Code); A.O. 2005-35 (opining that a doctor and patient are not considered to be business associates as defined by the Code); and A.O. 2005-36 (concluding that a doctor and patient are not considered 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 Planning Board’s consideration of the revisions to the Master Plan. 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: 2005-34 2005-35 2005-36 2002-40 Keywords: Recusal Business Associate