Advisory Opinion No. 2008-5 Rhode Island Ethics Commission Advisory Opinion No. 2008-5 Re: The Honorable Peter F. Kilmartin QUESTION PRESENTED: The petitioner, a legislator serving in the Rhode Island House of Representatives, a state elected position, requests an advisory opinion regarding whether there are any conflicts of interest between his legislative role and his private employment as an associate attorney at a law firm. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the facts represented by the petitioner, a legislator serving in the Rhode Island House of Representatives, a state elected position, do not create an impermissible conflict of interest under the Code of Ethics. The petitioner is a member of the Rhode Island House of Representatives, and also serves as the House Majority Whip. He represents that in his private employment he is an associate attorney in the law firm of Michael F. Horan, Esquire in Pawtucket. The petitioner states that the law firm is owned solely by Michael F. Horan ("Michael Horan"), and that as an associate attorney, the petitioner is considered to be an employee of the firm. Michael Horan's daughter, Monica Horan, is also employed by the firm as an associate attorney. The petitioner notes that Monica Horan, in addition to her paid employment with the firm, is an unpaid director of Blue Cross and Blue Shield of Rhode Island ("BCBSRI"). The petitioner states that BCBSRI frequently has a financial interest in legislation pending in the House of Representatives, and employs lobbyists to further its legislative agenda. However, the petitioner's employer neither lobbies nor performs legal services for BCBSRI. Given these representations, the petitioner asks whether his private employment in any way limits his participation as a legislator in matters pertaining to BCBSRI. The petitioner also notes that his employer, Michael Horan, is the principal of a separate realty corporation that owns the building in which the Michael Horan law firm has offices. A tenant in this building is Michael Horan's brother, R. Kevin Horan ("Kevin Horan"), who maintains his own separate legal and lobbying practice. Although Kevin Horan pays rent to his brother's corporation, there is no legal association between their law practices. The petitioner states that Kevin Horan serves as a lobbyist for several entities that have a financial interest in legislation pending in the House of Representatives. As a lobbyist for these entities, he is employed to further their legislative agendas. Given these representations, the petitioner asks whether his private employment in any way limits his participation as a legislator in matters pertaining to the clients of Kevin Horan. All state elected officials, including members of the General Assembly, are subject to the provisions of the Rhode Island Code of Ethics. R.I. Const. art. III, sec. 8 ("All elected and appointed officials . . . shall be subject to the code of ethics."); R.I. Gen. Laws § 36-14-4(1)("The following persons shall be subject to the provisions of the Rhode Island Code of Ethics in government: (1) State and municipal elected officials[.]"). Pursuant to the Code of Ethics, a legislator such as the petitioner is prohibited from accepting other employment which will either impair his independence of judgment as to his official duties, or require or induce him to disclose confidential information acquired by him in the course of his official duties. See R.I. Gen. Laws § 36-14-5(b). A legislator may not have an interest or engage in employment 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). A legislator will have an interest which is in substantial conflict with the proper discharge of his duties if he has a reason to believe or expect that he, a family member, an employer or business associate will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity in the House of Representatives. See R.I. Gen. Laws § 36-14-7(a). Applying the above provisions of the Code of Ethics to the questions presented, the petitioner is prohibited from taking any action as a member of the House of Representatives that is likely to cause a financial benefit or detriment to himself or to his employer, the law firm of Michael F. Horan, Esquire. As represented, BCBSRI is not a client or business associate of the firm. BCBSRI is, however, considered to be a business associate of the petitioner's fellow employee, Monica Horan, given her position as one of BCBSRI's unpaid Directors. There is no indication, from the facts represented, that BCBSRI's legislative successes or failures in the House of Representatives will financially impact the petitioner, his employer, or even his fellow employee who serves on BCBSRI's Board of Directors. Accordingly, it is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner from participating in House of Representatives matters involving or impacting BCBSRI. As to the second issue presented by the petitioner, the mere fact that the petitioner's employer leases office space to a lobbyist does not implicate the provisions of the Code of Ethics. The petitioner's relationship to the clients of this lobbying firm can be described as either: (1) the petitioner's employer's tenant's clients; or (2) the petitioner's employer's brother's clients. Either relationship is too remote to amount to a substantial conflict of interest requiring recusal. Accordingly, it is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner from participating in House of Representatives matters involving or impacting the lobbying clients of his employer's brother and tenant, R. Kevin Horan. Notwithstanding the above opinions, the Commission advises the petitioner to be vigilant in identifying legislation that may have a direct financial impact on his employer's clients. While the petitioner is not necessarily required to recuse from participation in every matter generally impacting his employer's clients, such recusal is necessary if his employer's continued work for, or compensation from, a client is likely to be impacted by the passage or defeat of a particular bill. See Complaint Nos. 2003-6, 2003-7 (member of House of Representatives violated section 5(a) by participating in legislation benefiting a particular client of his employer's law firm, given that the client's need for the legal representation was dependent upon passage of the legislation). The petitioner is encouraged to seek further advice from the Commission relative to potential conflicts between specific clients and specific pieces of legislation. Code Citations : 36-14-5(a) 36-14-5(b) 36-14-7(a) Related Matters : Complaint Nos. 2003-6, 2003-7 Keywords : Business Business associate Lobbying Recusal