Advisory Opinion No. 2007-5 Advisory Opinion No. 2007-5 Re: Stephen R. Archambault QUESTION PRESENTED: The petitioner, a member of the Smithfield Town Council, a municipal elected position, requests an advisory opinion regarding his ability to participate and vote on the Slacks Reservoir Association's request for the release of escrowed funds held by the Town for dam repair. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Smithfield Town Council, a municipal elected position, may participate and vote on the Slacks Reservoir Association's request for the release of escrowed funds held by the Town for dam repair. The petitioner is a member of the Smithfield Town Council, having been elected in November 2006. In his private capacity the petitioner is an attorney at law. He represents that in January 2006 he was contacted by an individual who sought assistance with legal issues involving a dam that abuts his property. In particular, the petitioner states that the individual sought advice as to whether the Rhode Island Department of Environmental Management (RIDEM) and the Slacks Reservoir Association ("the Association") could repair the dam and allow support structures to be placed offshore of his property. The individual also sought an easement over the Association's land in order to access his property. The petitioner states that he undertook a preliminary investigation of the matter, made telephone calls to RIDEM and the Smithfield building official, and reviewed a Superior Court file involving litigation between the individual and the Association. The petitioner represents that within two weeks he contacted the individual and declined to represent him. The petitioner states that he did not bill the individual or take any money, and that there was no further investigation or representation of the matter. The petitioner represents that both he and the individual agree that there is currently no attorney-client relationship between the two. The petitioner notes that the Association is now requesting that the Town release from escrow approximately $70,000 in funds in order to repair the dam. The petitioner asks whether he may participate in the Town Council's consideration of this request given his prior investigation on behalf of the individual, and the individual's interest in the dam and adjacent properties. Under the Code of Ethics, the petitioner 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). 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. See R.I. Gen. Laws § 36-14-7(a). Further, R.I. Gen. Laws § 36-14-5(d) prohibits an official from using his position or confidential information received though his position to obtain financial gain, other than that provided by law, for himself, a business associate or any person within his family. 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 Commission has long held that an attorney and his or her clients are considered to be business associates as that term is defined in the Code of Ethics. However, the Commission has also 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 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. 2003-17 (finding that an East Greenwich School Committee member may participate in a decision to hire an attorney who has previously represented the member, provided that there is no ongoing attorney client relationship between the petitioner and the attorney and there are no specific plans for representation in the near 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); 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). See also A.O. 97-7; A.O. 96-68; A.O. 96-62; A.O. 96-30. Here, the petitioner states that to the extent his pro bono preliminary investigation created an attorney-client relationship,[1] that relationship ended over a year ago and there are no plans for future representation. Given these facts, we find that there is no current business association between the petitioner and the individual. Accordingly, and with no other facts presented to indicate a conflict of interest, it is the opinion of the Ethics Commission that the petitioner may participate in the Town Council's decision regarding a request to release funds to the Association.[2] Code Citations: 36-14-2(3) 36-14-5(a) 36-14-5(d) 36-14-7(a) 36-14-6001 Related Advisory Opinions: 2003-17 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 [1] The Ethics Commission offers no opinion as to whether the petitioner's prior contact with the individual constituted legal representation. We note that the petitioner has put this question to the Rhode Island Supreme Court Ethics Advisory Panel. Even assuming arguendo that the prior contacts are found to have created an attorney-client relationship, the subsequent termination of that relationship severs any business association that existed under the Code of Ethics. [2] The petitioner is advised that this opinion solely address the application of the Rhode Island Code of Ethics. We do not offer any opinion as to whether his participation in the Town Council's deliberations is consistent with the Rhode Island Rules of Professional Conduct for attorneys, or any other code of conduct, rule, regulation, ordinance, charter or statute.