Advisory Opinion No. 2007-54 Advisory Opinion No. 2007-54 Re:Gordon G. Stroupe QUESTION PRESENTED : The petitioner, a member of the Smithfield Zoning Board of Review (“the Zoning Board”), a municipal appointed position, requests an advisory opinion as to whether he is prohibited from participating in a Zoning Board matter in which the Zoning Board will be sitting as the Smithfield Board of Appeals (“the Board of Appeals”), given that he has an ongoing attorney-client relationship with one of the attorneys who is representing the appellants in the matter. RESPONSE : It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Smithfield Zoning Board of Review (“the Zoning Board”), a municipal appointed position, is prohibited from participating in this Zoning Board matter in which the Zoning Board will be sitting as the Smithfield Board of Appeals (“the Board of Appeals”), given that he has an ongoing attorney-client relationship with one of the attorneys representing the appellants in the matter. The petitioner represents that he is an alternate member of the five-person Smithfield Zoning Board of Review. He states that the Zoning Board also sits as the Smithfield Board of Appeals in matters in which aggrieved parties are appealing decisions of the Smithfield Planning Board. Recently, the Smithfield Planning Board approved an application for a master plan submitted by Keegan LLC (“Keegan”). The proposed master plan includes a subdivision of twelve two-acre lots. The petitioner states that a number of abutting property owners filed an appeal; he further states that these appellants are represented by Attorney Matthew Leonard. The petitioner states that Attorney Leonard represents him in connection with a limited liability corporation in which he is the principal and that Attorney Leonard also provides other ongoing legal services to the petitioner and his family members. In light of these facts, the petitioner requests an advisory opinion as to whether he is prohibited by the Code of Ethics from participating, as a member of the Board of Appeals, in the hearing on this matter. Under the Code of Ethics, the petitioner, as a member of the Board of Appeals, 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). An official will have an interest in substantial conflict with his or her official duties if it is likely that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a business associate, an employer, or any business that the public official represents. See R.I. Gen. Laws § 36-14-7(a). Additionally, R.I. Gen. Laws § 36-14-5(f) states that “[n]o business associate of any person subject to this Code of Ethics shall represent him or herself or any other person . . . before the state or municipal agency of which the person is a member or by which the person is employed unless . . . the . . . person subject to th[e] Code of Ethics shall recuse him or herself from voting on or otherwise participating in the said agency's consideration and disposition of the matter at issue.” 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). In prior advisory opinions, the Commission has found that the attorney-client relationship creates a business association for purposes of the Code. See, e.g., A.O. 2007-5 (stating that “[t]he 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”); A.O. 2003-17 (opining that an attorney’s representation of petitioner’s company created a business association); A.O. 98-142 (finding that a Coastal Resource Management Council member must recuse from participating in matters involving a law firm while he has an ongoing attorney/client relationship with a member of that firm). It is worth noting that an attorney-client relationship ceases being a business association for purposes of the Code of Ethics once the attorney no longer represents the client “in an ongoing matter, bills for prior representation have been paid and there are no plans for specific representation in the near future . . . .” A.O. 2003-17. In the facts of this petitioner’s request, it is clear that the petitioner has an ongoing attorney-client relationship with Attorney Leonard. As such, the petitioner and Attorney Leonard are business associates as defined by R.I. Gen. Laws § 36-14-2(3), and the petitioner must recuse from his official duties as a member of the Board of Appeals when Attorney Leonard appears before him.See A.O. 2006-44 (opining that a member of the Smithfield Zoning Board was prohibited from participating in matters before the Zoning Board in which a specific attorney appeared, based upon the attorney-client relationship represented to exist between the petitioner and that attorney). Code Citations: § 36-14-2(3) § 36-14-5(a) § 36-14-5(f) § 36-14-7(a) Related Advisory Opinions: A.O. 2007-5 A.O. 2006-44 A.O. 2003-17 A.O. 98-142 Keywords: Business Associate