Advisory Opinion No. 2007-21 Advisory Opinion No. 2007-21 Re: Joseph Cardello III, PE QUESTION PRESENTED The petitioner, a member of the North Smithfield Planning Board, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits his participation in applications to the Planning Board that are prepared by a particular professional engineer. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the North Smithfield Planning Board, is not prohibited from participating in applications to the Planning Board that are prepared by the particular engineer described below. The petitioner is a member of the North Smithfield Planning Board. In his private capacity he is employed by Maguire Group Inc. ("Maguire") as a highway engineer in Maguire's "Transportation Unit." The petitioner represents that he has no equity or ownership interest in Maguire. The petitioner states that Maguire, through its "Water Resources Unit" is currently under contract to provide engineering services to the Providence Water Supply Board ("PWSB"). The petitioner notes that he does not work in the Water Resources Unit, and that he has no part whatsoever in Maguire's contract with the PWSB. Furthermore, he asserts that his employment with Maguire is in no way dependent upon the continuation of the PWSB contract. According to the petitioner, the PWSB's Director of Engineering is Paul Gadoury, a professional engineer who, unrelated to the PWSB, operates a business as a sole proprietor providing private engineering services. In the course of this private work, Gadoury occasionally appears before the North Smithfield Planning Board, or submits work product that comes before the Board. Given all of these representations, the petitioner asks whether he is permitted to participate in Planning Board applications for which Gadoury appears as an engineer or submits his professional work product. Under the Code of Ethics, a public official 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 or employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). A public official will have an interest in substantial conflict with his official duties if he has a 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). R.I. Gen. Laws § 36-14-5(d) prohibits the petitioner from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. R.I. Gen. Laws § 36-14-2(3). Section 5(f) of the Code further requires the petitioner to recuse himself from voting or participating in the consideration and disposition of a matter involving a business associate. See R.I. Gen. Laws § 36-14-5(f). 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). Here the petitioner does not appear to be in a position on the Planning Board to impart a financial benefit or detriment upon himself, his employer or his business associates. Gadoury is neither the petitioner's employer nor his business associate. Rather, he is the off-duty employee of a business associate of the petitioner's employer. This relationship between the petitioner and Gadoury is too remote to trigger the conflict of interest provisions of the Code of Ethics. Accordingly, the petitioner is free to participate in Planning Board matters in which Gadoury, through his private business, appears or submits work product. 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) Keywords: Business Associate Employer/Employee