Advisory Opinion No. 2008-20 Rhode Island Ethics Commission Advisory Opinion No. 2008-20 Re: Catherine Lynn QUESTION PRESENTED The petitioner, a member of the Smithfield Planning Board (“Planning Board”), a municipal appointed position, requests an advisory opinion as to whether she is prohibited by the Code of Ethics from participating in discussion and voting on matters coming before the Planning Board involving a proposed development by the developer Churchill and Banks, given that she is a former member and Vice President of Esmond Concerned Citizens, a group that previously opposed an application by the same developer for the same tract of land. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a member of the Smithfield Planning Board (“the Planning Board”), a municipal appointed position, from participating in discussion and voting on matters coming before the Planning Board involving a proposed development by the developer Churchill and Banks, notwithstanding the fact that she is a former member and Vice President of Esmond Concerned Citizens, a group that previously opposed an application by the same developer for the same tract of land. The petitioner states that she has been a member of the Smithfield Planning Board since the fall of 2006. She further states that in 2003, a group of area citizens organized a grassroots organization, Esmond Concerned Citizens (“the group”), to fight a proposed development; the petitioner represents that she was a member and served as the Vice President of the group. The group was concerned that the proposed development would increase traffic and create too high of a population density for the area that was the subject of the proposal. The proposed development was to consist of 336 apartments at the corner of Route 44 and Esmond Street in Smithfield and the proposed developer was Churchill and Banks. The petitioner resigned as a member of Esmond Concerned Citizens upon her appointment to the Planning Board and has no current affiliation or association with that group whatsoever. Eventually, the Town of Smithfield itself became involved in litigation that culminated in a writ of certiorari to the Rhode Island Supreme Court to review a decision of the State Housing Appeals Board in regard to Churchill and Bank’s application to the Zoning Board for the proposed development. The Court issued a factually and legally complex opinion that had the practical effect of stopping the proposed development. See Town of Smithfield v. Churchill and Banks, LLC, et al, 924 A.2d 796 (R.I. 2007). The petitioner states that since the Court’s opinion issued, Churchill and Banks approached the Smithfield Town Council on March 18, 2008, with an entirely different proposal for the same tract of land which would include a mix of business and residential uses, a hotel, and a village-like development with shops. The petitioner represents that at that meeting, the representative from Churchill and Banks stated that the new proposal would not generate the same level of traffic, nor create the same population density, as the previously defeated proposal. No formal plan was submitted to the Town Planner at that time. The petitioner states that at that meeting, the Town Council voted that the new proposal was appealing and referred the developer, Churchill and Banks, to the Planning Board. It is under this set of circumstances that the petitioner now requests an advisory opinion as to whether she must recuse from any proceedings on this matter that come before the Planning Board. She further represents that she is not an abutting property owner and does not foresee any financial impact upon herself whether the tract of land is developed by Churchill and Banks or not. Under the Code of Ethics, a public official or employee may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). The petitioner will have an interest in substantial conflict with her official duties if she has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of her official activity, to herself, a family member, a business associate, an employer, or any business which she 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, an official may not participate in a matter concerning or presented by a business associate, unless the agency is advised of the nature of the relationship, and the official recuses herself from voting or otherwise participating in her 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 are straightforward and do not present any relationship or potential financial impact that would implicate the prohibitions embodied in the Code of Ethics. The petitioner’s membership in Esmond Concerned Citizens terminated in 2006. Even assuming, arguendo, that the petitioner’s past membership in that group constituted a business association with the group, this Commission has consistently found that no inherent 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. 2008-7; A.O. 2004-3; A.O. 98-25; A.O. 97-112. Additionally, there is no indication yet that Esmond Concerned Citizens will be involved in the proceedings around this proposed development. While the petitioner’s prior involvement with that group may or may not be indicative of some personal feelings, personal preference alone does not support mandatory recusal under the Code of Ethics. See A.O. 2005-20 (opining that the Chairman of the North Smithfield Planning Board, who had written a letter to the Providence Journal in regard to a potential development, was not prohibited from participating in matters coming before the Planning Board regarding that development). Furthermore, the petitioner is not an abutting property owner, nor does she stand to be directly financially impacted whether the development goes forward or not. In light of the facts as represented by the petitioner and barring any other circumstance that would implicate the prohibitions found within the Code, nothing in the Code of Ethics prohibits the petitioner’s participation in matters coming before the Planning Board concerning this development or the developer Churchill and Banks. The petitioner is advised that this opinion solely addresses whether the Code of Ethics requires the petitioner's recusal. This opinion does not, and cannot, address whether any other statute, judicial decision, ruling, charter provision, ordinance, regulation or policy requires recusal under these facts. Code Citations : § 36-14-2(3) § 36-14-5(a) § 36-14-5(f) § 36-14-7(a) Related Case Law: Town of Smithfield v. Churchill and Banks, LLC, et al , 924 A.2d 796 (R.I. 2007). Related Advisory Opinions : A.O. 2008-7 A.O. 2005-20 A.O. 2004-3 A.O. 98-25 A.O. 97-112. Keywords : Business Associate Confidential Information