Advisory Opinion No. 2007-6 Advisory Opinion No. 2007-6 Re: Timothy F. Kane, Esq. QUESTION PRESENTED: The petitioner, the Solicitor for the Town of Smithfield, a municipal appointed position, requests an advisory opinion as to whether an attorney with whom he shares office space and expenses may appear before the Town Council and the Planning and Zoning Boards. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit an attorney with whom the petitioner, the Solicitor for the Town of Smithfield, a municipal appointed position, shares office space and expenses from appearing before the Town Council and the Planning and Zoning Board, provided that the petitioner recuses himself from participation in any matter brought by the attorney. The petitioner advises that he was recently appointed as Solicitor for the Town of Smithfield by the Smithfield Town Council (“Town Council”). He informs that he advises the Town Council only and that other Assistant Solicitors, who are not appointed by the petitioner, advise the members of the Planning and Zoning Boards. The petitioner informs that in his private employment he is a practicing attorney. The petitioner represents that he shares office space and expenses with another attorney. The petitioner states that he and the other attorney do not share letterhead, do not share profits, and do not work on legal matters together. However, the petitioner does acknowledge that he and the other attorney are business associates as defined by the Code of Ethics. Finally, the petitioner represents that if the other attorney were to appear before the Town Council, he would recuse himself from participating in any matter brought by the attorney. Given these representations, the petitioner seeks guidance from the Commission as to whether an attorney with whom he shares office space and expenses may appear before the Town Council and the Planning and Zoning Boards. Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). An official will have an interest in substantial conflict with his official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by reason of his official activity, to the official, a family member, a business associate, an employer or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a). The probability of a conflict must be greater than “conceivably,” but it need not be certain to occur. Commission Regulation 36-14-7001. Section 36-14-5(d) of the Code further prohibits an official from using his position or confidential information received through 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 any individual or entity joined with a public official “to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). Pursuant to R.I. Gen. Laws § 36-14-5(f), no business associate of a public official shall represent himself or any other person before the state or municipal agency of which the official is a member or by which he is employed unless he first advises the agency of the nature of his relationship with the official and the official recuses from participating in the agency’s consideration and disposition of the matter. In the instant matter, the petitioner represents that he will recuse himself from participating in any matter brought by the attorney in accordance with section 5(f) of the Code of Ethics. As such, the prohibitions contained in sections 5(a) and 5(d) of the Code are not triggered. Further, given the petitioner’s representation that he does not appoint the Assistant Solicitors who advise the Planning and Zoning Boards, the Code is not implicated by his business associate’s appearance before those public bodies. Accordingly, the Commission opines that the Code of Ethics does not prohibit an attorney with whom the petitioner shares office space and expenses from appearing before the Town Council and the Planning and Zoning Board, provided that the petitioner recuses himself from participation in any matter brought by the attorney. Notice of recusal must be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Finally, the petitioner is advised that this opinion solely addresses the Code of Ethics and does not, and cannot, address whether other policies, regulations, or rules, such as the Rules of Professional Conduct or any other statutes or rulings would prohibit the petitioner’s business associate from appearing before the aforementioned public bodies. Code Citations: 36-14-5(a) 36-14-5(e) 36-14-5(f) Keywords: Business Associate