Advisory Opinion No. 2006-7 Advisory Opinion No. 2006-7 Re: William Juhr QUESTION PRESENTED The petitioner, a member of the North Smithfield Zoning Board of Review, a municipal appointed position, requests an advisory opinion as to whether he may participate in and vote on North Smithfield Zoning Board of Review matters related to the proposed Dowling Village development project in the Town of North Smithfield, given that one of his former business associates opposes the project. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the North Smithfield Zoning Board of Review, a municipal appointed position, may participate in and vote on North Smithfield Zoning Board of Review matters related to the proposed Dowling Village development project in the Town of North Smithfield, notwithstanding that one of his former business associates opposes the project. The petitioner informs that he is a member of the North Smithfield Zoning Board of Review. He states that this Board acts as the Planning Board of Appeals. He represents that the Board, sitting as the Planning Board of Appeals, will soon consider an appeal by the developer of the Dowling Village development project to overturn the Planning Board’s denial of proposed amendments to the Master Plan. In addition, the petitioner informs that he is the sole owner of an internet consulting business named Bill’s Internet Consulting, LLC. He represents that sometime during the end of February 2005 he was contacted by members of a local grassroots organization named Valley Alliance for Smart Growth (VASG) to create, host, and maintain their online website. The petitioner represents that VASG is no longer his client because VASG has since moved their website to another hosting provider and that they maintain their website via their membership. The petitioner represents that VASG has opposed the Dowling Village project. He informs that he is not and has not been a member of VASG and that he has never paid any membership fees. He also informs that he has neither signed any petitions nor had any signs on his property opposing the project, as some individuals in North Smithfield have done. He states that he has only attended two VASG meetings to collect input as to how the website should be set up and configured, and to give a status update on information related to progress and costs. He represents that his prior relationship with VASG was “strictly professional” and always related to the VASG website activities. He further represents that there is no indication that a financial benefit or detriment will accrue to him, his family, his business, or business associates as a result of his official activity regarding the Dowling Village project. 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). The Code of Ethics defines a business associate 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 commercial relationship creates a business association that triggers the prohibition set forth in R.I. Gen. Laws § 36-14-5(a). See, e.g., A.O. 2005-64 (opining that a member of the Burrillville Redevelopment Agency may not participate in discussions or votes on matters coming before the Agency regarding a nonprofit developer’s request for approval of a project in a redevelopment district given that the petitioner is a partner in an accounting firm that provides accounting services to this developer on a “continuing basis”). Conversely, the Commission has consistently 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 business relationship between the parties. See, e.g., A.O. 2004-3 (opining that the petitioner is no longer a business associate of a person who previously performed work at his residence and who acted as the petitioner’s real estate broker in his purchase of a new home given that the work was completed, that no bills or fees remained outstanding for the services rendered, that the property involved in real estate relationship had closed, and that the parties did not anticipate the performance of additional work or real estate dealings in the near future). In such instances, the Commission has opined that a public official may participate in matters involving his or her former business associate if no other conflicts are present. See, e.g., A.O. 2001-1 (opining that a Westerly Town Councilor may participate and vote on matters involving the School Department given that the lease agreement she and her spouse had with the Department had terminated and, as a result, they were no longer business associates). In the instant matter, the petitioner represents that his business relationship between himself and VASG has terminated. Accordingly, provided that any bills and fees due for the prior services rendered by the petitioner to VASG are paid and provided that they have no plans to conduct business together in the near future, the petitioner’s representations provide no apparent conflict under the Code of Ethics and the petitioner may participate in and vote on the matters coming before the Zoning Board related to the proposed Dowling Village development project in the Town of North Smithfield. Code Citations: 36-14-2(3) 36-14-2(7) 36-14-5(a) 36-14-7(a) Related Advisory Opinions: 2005-64 2004-3 2001-1 Keywords: Business Associate