Advisory Opinion No. 2005-55 Re: Tara M. Capuano QUESTION PRESENTED: The petitioner, an alternate member of the Town of Cumberland Zoning Board, a municipal appointed position, requests an advisory opinion as to whether she must recuse herself from participating in matters where an attorney who previously represented her company appears before the Board. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, an alternate member of the Town of Cumberland Zoning Board, a municipal appointed position, may participate in the Board’s consideration of matters involving an attorney who previously represented her company provided: (a) No business relationship currently exists between the parties; and, (b) it is not reasonably foreseeable that the parties will engage in a future business relationship. The petitioner is an alternate member of the Cumberland Zoning Board. The petitioner informs that she was appointed to the Zoning Board on March 2, 2005. The petitioner advises that prior to her appointment she owned property in the Town in the name of Harris Realty Trust, LLC. The petitioner represents that in the process of selling the property she retained Attorney Michael Kelly. The petitioner informs that the buyer of her property also owned property next to the subject property. The petitioner represents that in January of 2005, prior to her appointment to the Zoning Board, she and the new owner submitted applications regarding said property to the Zoning Board. The petitioner advises that due to various cancellations, the applications were presented on May 11, 2005. The petitioner advises that she notified the Assistant Town Solicitor and the Zoning Board Chairperson of her conflict; and, at the May 11, 2005 meeting she recused herself. Lastly, the petitioner made express representations in a subsequent telephone conversation that she does not have an existing business relationship with Attorney Kelly and she does not anticipate that she would have one in the future. Under the Code of Ethics, the petitioner may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her 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 her official duties if she has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of her official activity, to herself, a family member, a business associate, or any business by which she is employed or which she represents. See R.I. Gen. Laws § 36-14-7(a). Additionally, the Code provides that the petitioner has reason to believe or expect a conflict of interest exists if it is "reasonably foreseeable" that she, a family member, employer, or business associate will be financially impacted. To be "reasonably foreseeable" the probability must be greater than "conceivable," but the impact need not be certain to occur. See Commission Regulation 36-14-6001. Further, R.I. Gen. Laws § 36-14-5(d) prohibits an official from using her position or confidential information received though her position to obtain financial gain, other than that provided by law, for herself, a business associate or any person within her family. 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 relationship and the official recuses herself from voting or otherwise participating in her agency's consideration of the matter at issue. See R.I. Gen. Laws § 36-14-5(f). A business associate is defined as “a person joined together with another person 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 from consideration of matters if the official had an ongoing or anticipated business relationship with an individual or entity appearing before his or her public body. See A.O. 98-142 (finding that a Coastal Resource Management Council member must recuse from participating in matters involving a law firm while he has an ongoing attorney/client relationship with a member of that firm); A.O. 98-117 (concluding that an Exeter Town Councilor may not participate in a zoning matter where she has had and will likely have an employment relationship with an attorney appearing before her on a zoning matter); and A.O. 94-60 (concluding that a member of the North Kingstown Planning Commission may not participate in the consideration of a subdivision proposal submitted by an engineer where the member planned to engage in business projects within the immediate future with that engineer). Conversely, the Commission has consistently found that no potential for a 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. 2004-31 (finding that a member of the Jamestown Town Council may participate in the Council’s discussion and vote provided that there is no ongoing or anticipated business association with the engineering firm appearing before the Council); A.O. 2003-54 (concluding that a Warren Planning Board member may participate in the Board’s consideration of matters involving an applicant with whom he has worked with in the past provided that no business relationship currently exists and is not anticipated in the future); 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); and 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). 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 may participate in the Zoning Board’s consideration of matters involving Attorney Kelly given that no business association currently exists between the parties and it is not foreseeable that they would engage in a business association in the near future. Code Citations 36-14-2(3) 36-14-5(a) 36-14-5(d) 36-14-5(f) 36-14-7(a) 36-14-6001 Related Advisory Opinions 2004-31 2003-54 98-142 98-117 98-25 97-112 94-60