Advisory Opinion No. 2008-11 Rhode Island Ethics Commission Advisory Opinion No. 2008-11 Re: Frederick C. Stachura QUESTION PRESENTED: The petitioner, a member of the Tiverton Planning Board (“the Planning Board”), a municipal appointed position, requests an advisory opinion as to whether he is prohibited from participating in a review of proposed amendments to the Tiverton Zoning Ordinance (“the Zoning Ordinance”) as requested by the Tiverton Yacht Club (“the Yacht Club”), given that his children took swimming lessons at the Yacht Club in July of 2007. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the Tiverton Planning Board (“the Planning Board”), a municipal appointed position, is not prohibited from participating in the Planning Board’s review of a proposed amendment to the Tiverton Zoning Ordinance (“the Zoning Ordinance”), as requested by the Tiverton Yacht Club (“the Yacht Club”), notwithstanding the fact that his children took swimming lessons at the Yacht Club in July of 2007. The petitioner represents that his two young children participated in a youth summer swim program at the Yacht Club during July of 2007. The petitioner further states that he is not now, nor has he ever been, a member of the Yacht Club. He additionally states that he has no current involvement whatsoever with the Yacht Club, nor any financial interest in the Yacht Club, nor any family who are members of the Yacht Club, or its Board of Directors or Board of Trustees, nor does he do any business with the Yacht Club. The Yacht Club is a small organization, of which the maximum membership is kept to 200 families, although at this time, the membership includes approximately 155 families. The Yacht Club offers family-oriented activities, including Red Cross certified swimming lessons, sailing lessons for children and teens, and other general family-oriented social gatherings. The Yacht Club also runs a small marina, which is located across the street from the Yacht Club’s main facility, which includes about 20 slips for mooring boats. The former building located on Riverside Drive in Tiverton, which housed the activities and operations of the Yacht Club since the 1950s, burned down in a fire in 2003. In the aftermath of the fire, in its attempts to rebuild on the same site, the Yacht Club has been a party to a protracted legal dispute with abutting property owners. Most recently, the Superior Court issued an order, nullifying a building permit which the town had issued to the Yacht Club in 2006, allowing the Yacht Club to build a new clubhouse on the site of the prior one. Most pertinent to this petitioner’s request is a recent submission by the Yacht Club to the Tiverton Town Council (“the Town Council”), requesting an amendment to the Zoning Ordinance, which the Town Council has since referred to the Planning Board, asking for its recommendation. Previously, the Yacht Club was permitted to run its operations out of the Riverside Drive location, which is an area zoned as R-40 (residential), under a non-conforming special use allowance. The Yacht Club has submitted a request to the Town Council for an amendment to the zoning ordinance which would make the club a permitted use, rather than a non-conforming one. The Town Council has in turn passed the matter on to the Planning Board for a recommendation. As such, the petitioner requests an advisory as to whether he may participate in the Planning Board’s consideration and recommendation to the Town Council on the proposed amendment, given that his children took swimming lessons at the Yacht Club in July of 2007. Under the Code of Ethics, a public official or employee 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). Commission Regulation 36-14-6001 provides that a public official has reason to believe or expect that a conflict of interest exists when it is “reasonably foreseeable.” Also, no business associate of any person subject to this Code of Ethics shall represent him or herself before the municipal agency of which the person is a member unless the agency is advised of the nature of the relationship and the official recuses himself from voting or otherwise participating in his agency's consideration of the matter at issue. See R.I. Gen. Laws § 36-14-5(f). 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 facts in this petitioner’s request do not present any relationship or potential financial impact that would implicate the prohibitions embodied in the Code of Ethics. In order to determine whether a business relationship rises to the level of a “business association” under Section 2(3), the Commission must examine the nature of the association and the scope of the parties’ business dealings. See, e.g., A.O. 2004-29. This petitioner does not have any existing contract or specific business relationship with the Yacht Club. The fact that the petitioner’s children participated in swimming lessons in 2007 at the Yacht Club does not create a relationship between the petitioner and the Yacht Club such that the prohibitions found in the Code of Ethics are implicated; rather, it is the sort of transaction occurring in the ordinary course of business that does not create a business association. See A.O. 2001-17 (opining that a Jamestown Town Councilor was not prohibited from participating and/or voting in the Council’s consideration of a bid submitted by an engineering company that had previously rented and bought geological field and laboratory equipment from the petitioner’s business, since the petitioner’s relationship with that firm was not a business association that would trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 7(a)); A.O. 2001-7 (opining that a Westerly Town Councilor was not prohibited by the Code of Ethics from participating and/or voting on Council matters involving customers of his haircutting business since the normal commercial dealings between such individuals, absent some direct and ongoing financial relationship, does not constitute a business association that would trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 7(a)); A.O. 99-21 (opining that a Westerly Town Councilor was not prohibited from participating in the review and/or award of a contract for an administrator of the Town's landfill, notwithstanding the fact that companies that purchase parts from his automobile parts store may respond to the Town's RFP, since his relationship with such companies is not a business association that would trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 7(a)); A.O. 93-21 (concluding that a West Warwick Town Councilor who was a regular customer of a restaurant could participate in the review of an application for a twenty-four hour victualling license for that restaurant, absent any significant financial nexus). Even assuming, arguendo, that the petitioner’s children’s participation in the Yacht Club swimming program constituted a business association with the Yacht Club, this Commission has consistently found that no potential for a 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, e.g., A.O. 2004-3; A.O. 98-25; A.O. 97-112. Based on the petitioner's representations, pertinent provisions of the Code of Ethics, and prior advisory opinions, we conclude that the petitioner’s children’s past involvement in the swimming program at the Tiverton Yacht Club does not require his recusal from participation in matters involving the Yacht Club coming before the Planning Board. Code Citations: § 36-14-2(3) § 36-14-5(a) § 36-14-5(f) § 36-14-7(a) Regulation 36-14-6001 Related Advisory Opinions: 2004-29 2004-3 2001-17 2001-7 99-21 98-25 97-112 93-21 Keywords: Business Association Financial Interest Recusal