Advisory Opinion No. 2008-28 Rhode Island Ethics Commission Advisory Opinion No. 2008-28 Re: Franklin H. Pond QUESTION PRESENTED The petitioner, a member of the Little Compton Zoning Board of Review (“the Zoning Board”), a municipal appointed position, requests an advisory opinion as to whether he is prohibited by the Code of Ethics from participating in discussion and voting regarding an application before the Zoning Board filed by the Stone House LLC, given that he is a past member of the Stone House Club, a private club run by the previous owners of the Stone House. RESPONSE It is the opinion of the Ethics Commission that the petitioner, a member of the Little Compton Zoning Board of Review (“the Zoning Board”), a municipal appointed position, may participate in discussion and voting regarding an application before the Zoning Board filed by Stone House LLC, notwithstanding the fact that he is a past member of the Stone House Club, a private club run by the previous owners of the Stone House. The petitioner is a member of the Little Compton Zoning Board of Review. He states that the Zoning Board is scheduled to hear an application from Stone House LLC on June 18, 2008, for variances that are needed for the renovation and enlargement of the Stone House, an historic inn and restaurant located in Little Compton. The petitioner states that the prior owners of the Stone House property had formed a private club in order to allow members to be served alcohol on the premises. The petitioner states that he was a member of the Stone House Club for approximately twenty years. He states that he was just an ordinary member, and was not an officer or in any kind of leadership position in the Club. He states that his most recent dues were paid in June of 2007 and totaled $40 for an annual membership. He represents that the only benefit of membership that he received was the ability to drink alcohol on the premises and that to the best of his knowledge, there were approximately several hundred other members receiving the same benefit. The petitioner states that subsequent to his June, 2007 payment of membership dues, the Stone House property was sold to new owners and his membership was terminated by the new ownership effective December, 2007. He further states that he has received notice from the new owners that contained a description of a variety of new private clubs that will be offered when the establishment reopens for business following renovations, which expand upon the previous benefits to include such things as spa services and time-share type privileges and that, due to a substantial increase in the membership fees being charged, he will not be rejoining. In light of all of these facts, the petitioner requests an advisory opinion as to whether he is prohibited by the Code of Ethics from participating in the Zoning Board’s review of the application for variances submitted by Stone House LLC. 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). Also, an official may not participate in a matter concerning or presented by a business associate and must recuse 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. The petitioner’s membership in the Stone House Club terminated in December of 2007 and the petitioner states that he has no intention whatsoever of joining any of the newly formulated clubs when the Stone House reopens after renovations. Even assuming, arguendo, that the petitioner’s past membership in the Stone House Club constituted a business association with the Stone House Club, this Commission has consistently found that no prohibited 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. Based on the petitioner's representations, pertinent provisions of the Code of Ethics, and prior advisory opinions, we conclude that the petitioner’s past membership in the Stone House Club does not require his recusal from participation in matters involving Stone House LLC coming before the Zoning Board. Code Citations : § 36-14-2(3) § 36-14-5(a) § 36-14-5(f) § 36-14-7(a) Related Advisory Opinions : A.O. 2008-7 A.O. 2004-3 A.O. 98-25 A.O. 97-112 Keywords : Business Association Memberships