Advisory Opinion No. 2006-46 Advisory Opinion No. 2006-46 Re: Richard S. Humphrey QUESTION PRESENTED: The petitioner, the Little Compton Town Solicitor, a municipal appointed position, requests an advisory opinion regarding his ability to advise the Town Council on a request for investigation filed by an individual who previously filed a complaint against the petitioner with the Ethics Commission. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Little Compton Town Solicitor, a municipal appointed position, may act as legal advisor to the Town Council on a request for investigation filed by an individual who previously filed a complaint against the petitioner with the Ethics Commission. Under the Code of Ethics, a public official may not have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity, or incur any obligation, which is in substantial conflict with the proper discharge of his or her duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A public official has a substantial conflict of interest if he or she has reason to believe or expect that he or she will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. R.I. Gen. Laws § 36-14-7(a). Commission Regulation 36-14-6001 provides that a public official has reason to believe or expect a conflict of interest exists when it is “reasonably foreseeable.” The petitioner informs that Mary J. Johnson, a Little Compton resident, filed a request for investigation with the Little Compton Town Council relative to construction being performed on a residential property located within the municipality at 20 Quoquonset Lane. Ms. Johnson is an abutting property owner and has requested that the Town Council investigate various issues regarding the construction of an alleged non-conforming structure at said location. The petitioner advises that in December 1999, Ms. Johnson filed a complaint against him with the Ethics Commission. The Commission dismissed Complaint No. 1999-5 for failure to allege facts sufficient to constitute a knowing and willful violation of the Code of Ethics. The petitioner inquires as to his ability to advise the Town Council on Ms. Johnson’s request, given that she was the complainant in the aforesaid matter. Based upon the facts presented, no familial, private employment or business association exists between the petitioner and Ms. Johnson that would bar his participation in the Town Council’s consideration of the matter at issue. Without the existence of a relationship covered by the Code of Ethics, nothing contained in the Code of Ethics prohibits his participation. In an analogous advisory opinion, the Commission concluded that the Code of Ethics did not prohibit the New Shoreham Town Solicitor from acting as legal counsel to the Zoning Board on an application where the applicant had filed a pending complaint against the Solicitor with the Ethics Commission. E.g., A.O. 98-27. In the instant matter, the Commission dismissed the complaint filed by Ms. Johnson more than six years ago. Accordingly, the Code of Ethics does not prohibit the petitioner from advising the Town Council on the request for investigation. Finally, when enacting the Code of Ethics, the General Assembly included as one of its legislative purposes the elimination of appearances of impropriety. R.I. Gen. Laws § 36-14-1. However, the legislature did not make the appearance of impropriety a violation of the law, nor do the constitutional provisions that mandated the creation of the Ethics Commission establish that an appearance of impropriety constitutes a violation of the law. See R.I. Const., art. III, sec. 7. Although the Commission may recommend that the petitioner publicly disclose the nature of his prior relationship with the individual at issue and the basis upon which he intends to participate, or not participate, in the Town Council’s review of her request, the law does not require his recusal. Code Citations: 36-14-1 36-14-5(a) 36-14-7(a) R.I. Const., art. III, sec. 7 Related Advisory Opinions: 2002-40 2001-71 98-27 95-61 94-26 Keywords: Complaint Financial Interest Recusal