Advisory Opinion No. 2008-21 Rhode Island Ethics Commission Advisory Opinion No. 2008-21 Re: Terence Fleming QUESTION PRESENTED The petitioner, a member of the Narragansett Planning Board (“Planning Board”), a municipal appointed position, requests an advisory opinion as to whether he may participate in discussion and voting regarding two affordable housing development proposals coming before the Planning Board in which the Narragansett Housing Authority (“NHA”) may be retained as the monitoring agent, given that his daughter has applied for and been offered a unit in the Camp JORI affordable housing complex in Narragansett, of which the NHA is the developer. RESPONSE It is the opinion of the Ethics Commission that the petitioner, a member of the Narragansett Planning Board (“Planning Board”), a municipal appointed position, may participate in discussion and voting regarding two affordable housing development proposals coming before the Planning Board in which the Narragansett Housing Authority (“NHA”) may be retained as the monitoring agent, notwithstanding the fact that his daughter has applied for and been offered a unit in the Camp JORI affordable housing complex in Narragansett, of which the NHA is the developer. The petitioner is the Chairperson of the Narragansett Planning Board. He states that the Planning Board is currently evaluating proposals for two affordable housing developments, the “Narragansett Highlands” and “Atlantic East.” He states that if these proposals obtain approval, the Narragansett Housing Authority may be retained as the monitoring agent for one or both of the developments. The petitioner additionally states that in 2006, the Planning Board approved a proposal submitted by the NHA for the construction of an affordable housing complex at Camp JORI in Narragansett. The petitioner represents that in 2007, his daughter applied for a condominium in that complex under the provisions of the affordable housing legislation, and that, subsequently, she received approval of her application and has been offered a unit, although no purchase and sales agreement has yet been issued. Under this set of factual circumstances, in which the petitioner’s daughter has previously been offered and accepted a unit in a development in which the NHA is the developer, and currently before the Planning Board are two new and separate proposals in which the NHA may be retained to monitor the developments, the petitioner seeks an advisory opinion as to whether he is prohibited by the Code of Ethics from participating in discussion and voting on the “Narragansett Highlands” and “Atlantic East” proposals currently before the Planning Board. Under the Code of Ethics, the petitioner, as a member of the Planning Board, 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 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, any person within his family, any business associate, an employer, or any business that the public official represents. See R.I. Gen. Laws § 36-14-7(a). “Business associate” is defined in the Code as “a person joined together with another person to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). Finally, 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.” Central to the analysis of this petitioner’s request is the question of whether or not his daughter’s relationship with the NHA prohibits him from participating in the current proposals before the Planning Board regarding the “Narragansett Highlands” and “Atlantic East” developments, and further, whether it is reasonably foreseeable that his participation in these matters will have a financial impact upon his daughter. This Commission has previously opined that a public official is not required to recuse from matters that may cause a financial impact solely upon his family member's business associate. See A.O. 2002-41 (opining that a Westerly Town Council member may participate in the consideration of matters involving an individual with whom his father had business dealings in a real estate broker/client relationship, as the petitioner's relationship with the individual was too remote to trigger the prohibitions set forth in the Code of Ethics); A.O. 99-28 (opining that a Zoning Board of Review member was not prohibited from participating in the review of an application for a special use permit to construct a drive-thru, notwithstanding the fact that the applicant employed the petitioner’s spouse, since the petitioner's relationship with the applicant was too remote to implicate the prohibitions set forth in the Code, and there was no evidence that the construction of the drive-thru would impact his spouse's employment). Furthermore, this Commission has also previously opined that municipal agencies such as the NHA are not to be considered “businesses” that can be “business associates” as defined in the Code. See A.O. 2005-31 (Town of Portsmouth is not a “business,” nor is it a “business associate” of the Town’s Director of Business Development); A.O. 2002-55 (concluding, inter alia, that the Town of Richmond is not a “business”); A.O. 97-17 (finding, inter alia, that the definition of “business” does not extend to public entities such as the Warren Town Council or the Bristol County Water Authority). Therefore, the petitioner’s daughter’s relationship with the NHA does not constitute a “business association” as defined in the Code of Ethics. Finally, in the facts as represented by the petitioner, there is nothing to indicate that it is reasonably foreseeable that the petitioner’s involvement in the proposals presently before the Planning Board will have a financial impact upon his daughter, as his daughter has already received approval by the NHA for, and been offered, a unit in the Camp JORI complex. However, if the petitioner’s daughter’s circumstances should change such that it is reasonably foreseeable that his participation in matters involving the NHA may result in a financial impact upon his daughter, he is encouraged to seek further guidance from this Commission and/or recuse from participation in accordance with R.I. Gen. Laws § 36-14-6. Thus, barring any other relationship that would implicate provisions of the Code of Ethics, this petitioner is not prohibited by the Code from participating in the proposals regarding the “Narragansett Highlands” and “Atlantic East” developments currently before the Planning Board. Code Citations : 36-14-2(3) 36-14-5(a) 36-14-5(f) 36-14-6 36-14-7(a) Related Advisory Opinions : 2005-31 2002-55 2002-41 99-28 97-17 Keywords : Business Associate Family Member