Advisory Opinion No. 2006-44 Advisory Opinion No. 2006-44 Re: John E. Kovolski QUESTION PRESENTED: The petitioner, a member of the Smithfield Zoning Board, a municipal appointed position, requests an advisory opinion regarding whether he may participate in Zoning Board hearings in which an attorney, who also represents the petitioner in an ongoing matter pending in Superior Court, appears on behalf of a party. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Smithfield Zoning Board, a municipal appointed position, is required to recuse from participation in any Zoning Board matters for which the petitioner's attorney, who represents the petitioner in an ongoing matter in Superior Court, appears on behalf of a party. The petitioner states that he is involved in a zoning appeal pending in the Rhode Island Superior Court and that he is being represented therein by Attorney Timothy Kane. Unrelated to the lawsuit, the petitioner states that he was recently appointed to serve on the Smithfield Zoning Board. The petitioner notes that his attorney in the Superior Court matter appears before the Smithfield Zoning Board on a regular basis. Given these representations, the petitioner asks whether the Code of Ethics allows his participation in Zoning Board matters in which Attorney Kane appears on behalf of a party. Under the Code of Ethics, a public official or employee 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 duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a); 36-14-7(a). The petitioner will have an interest in substantial conflict with his official duties if he has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. R.I. Gen. Laws § 36-14-7(a). Commission Regulation 36-14-6001 provides that a public official has reason to believe or expect that a conflict of interest exists when it is “reasonably foreseeable.” Also, an official may not participate in a matter concerning or presented by a business associate unless the agency is advised of the nature of the relationship and the official recuses himself from voting or otherwise participating in his 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). The Ethics Commission has consistently held that an ongoing attorney-client relationship constitutes a business association under the Code, and has required public officials to recuse from consideration of matters if the official has an ongoing or anticipated business relationship with an attorney or other professional appearing before his or her public body. See e.g., A.O. 2002-61 (Westerly Town Council member must recuse from participating in re-zoning petitions involving an engineering firm which she has hired to perform work on her property); 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). Based upon the attorney-client relationship represented to exist, there is a current business association between the petitioner and Attorney Kane. Given this business association, the petitioner must recuse from participation in Zoning Board matters in which Attorney Kane represents himself or others. See R.I. Gen. Laws § 36-14-5(f). Notice of recusal must be filed with the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. Code Citations: 36-14-2(3) 36-14-5(a) 36-14-5(d) 36-14-5(f) 36-14-6 36-14-7(a) 36-14-6001 Related Advisory Opinions: 2002-61 2002-40 2001-4 99-95 99-78 99-11 98-159 98-142 98-141 98-117 98-25 97-112 97-7 96-100 96-68 96-62 96-30 95-81 94-60 Keywords: Business Associate