Advisory Opinion No. 2006-51 Advisory Opinion No. 2006-51 Re: Patrick A. Rogers QUESTION PRESENTED: The petitioner, a member and Chairman of the East Providence Waterfront Special Development Commission, a state and municipal appointed position, who in his private employment is an attorney for a client with a development project subject to the Waterfront Commission's jurisdiction and decision-making, asks whether he may represent his client before certain officials, departments and agencies of the City of East Providence and the State of Rhode Island. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member and Chairman of the East Providence Waterfront Special Development Commission, a state and municipal appointed position, may as a private attorney represent a client before certain officials, departments and agencies of the City of East Providence and the State of Rhode Island notwithstanding that the client has a development project subject to the Waterfront Commission's jurisdiction and decision-making. The petitioner is the Chairman of the East Providence Waterfront Special Development Commission ("Waterfront Commission"). The Waterfront Commission's enabling legislation describes it as a State-local-private sector partnership to plan, implement, administer, and oversee the development of the East Providence Waterfront District and [] to authorize, provide for, and facilitate the consolidated exercise of development and redevelopment powers existing at the State and local levels. 2003 R.I. Pub. Laws, ch. 345. The petitioner advises that his position as Chairman was a joint appointment of the Governor, subject to Senate confirmation, and of the Mayor of East Providence, subject to City Council approval. He states that the Waterfront Commission is independent of the City of East Providence ("the City") and that it has no appointment authority, appellate jurisdiction, or fiscal or jurisdictional control over any other state or municipal entity. In his private employment, the petitioner is a partner at the law firm of Edwards Angell Palmer & Dodge LLP ("EAPD"). He states that a client of EAPD has entered into an agreement to acquire and develop a parcel of land in East Providence for residential and commercial purposes ("the project"), and that some aspects of the project will be subject to the Waterfront Commission's regulatory review and decision-making. The petitioner does not wish to represent the client before the Waterfront Commission, and in that regard expressly represents that he will not represent the client before the Waterfront Commission and that he will also recuse from participation in any Waterfront Commission matters regarding the client or the project. However, the petitioner inquires as to whether he is permitted to represent the client on matters concerning the project before other entities such as the East Providence City Council, City Manager or Zoning board, and also before agencies and officials of the State of Rhode Island. Under the Code of Ethics, the petitioner may not engage in any employment that will impair his independence of judgment as to his public duties. See R.I. Gen. Laws § 36-14-5(b). He is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d). He may not, as a public official, 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 and employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). Section 5(f) provides that the petitioner must recuse from participation where a business associate appears before the agency of which he is a member. R.I. Gen. Laws § 36-14-5(f). A “business associate” is as a person joined together with another person to achieve a common financial objective. R.I. Gen. Laws § 36-14-2(3). As to these sections of the Code, we are of the opinion that the petitioner's recusal from Waterfront Commission matters involving his client/business associate, which is required, will negate any impairment of his judgment as to his public duties and will eliminate the opportunity to participate in a matter that is in conflict with his private interests. Notice of recusal must be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. More relevant to the question presented, Commission Regulation 36-14-5008 prohibits the petitioner from acting as agent or attorney before any agency or board over which the Waterfront Commission exercises fiscal or jurisdictional control. Similarly, section 5(e) of the Code prohibits the petitioner from representing another person before the Waterfront Commission or before another agency, if any, for which the Waterfront Commission is the appointing authority. See R.I. Gen. Laws § 36-14-5(e)(2); Regulation 36-14-5016(b). A potential violation of these sections of the Code can not be avoided through recusal at the Waterfront Commission, since the proscribed conduct involves appearances before other entities. Relying on the petitioner's representations, however, leads to a finding that sections 5(e) and 5008 of the Code do not apply. The petitioner represents that the Waterfront Commission does not have appointment authority, or exercise fiscal or jurisdictional control over any agency, board or other entity of municipal or state government. In particular, he states that the East Providence City Council, City Manager and Zoning Board are completely independent of any Waterfront Commission oversight or control. Similarly, the petitioner states that the Waterfront Commission has no appointment power or fiscal or jurisdictional control over any state agency or official. Based on the petitioner's representations, the Commission concludes that Code of Ethics does not prohibit the petitioner from representing his private client before the East Providence City Council, City Manager and Zoning Board, and before Rhode Island agencies and officials. This opinion only addresses the application of the Code of Ethics, and does not offer any opinion or guidance as to the application of other laws, statutes, codes, regulations, policies, ordinances or charter provisions. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-5(e) 36-14-5(f) 36-14-6 36-14-7(a) 36-14-5008 36-14-5016(b) Related Advisory Opinions: 2003-34 2002-36 2001-18 99-67 95-19 Keywords: Business associate Private employment