Advisory Opinion No. 2008-40 Rhode Island Ethics Commission Advisory Opinion No. 2008-40 Re: John Hanley QUESTION PRESENTED: The petitioner, Building Official for the City of Pawtucket (“Building Official”), a municipal appointed position, and member of the Warren Town Council (“Town Council”), a municipal elected position, requests an advisory opinion as to whether he is prohibited from performing his duties as Building Official regarding a development project in Pawtucket in which the engineering firm of Fuss and O’Neil is providing services, given that, in his capacity as a Warren Town Council member, he voted in favor of awarding a three-year contract to Fuss and O’Neil to act as Town Engineer. RESPONSE: It is the opinion of the Ethics Commission that the petitioner, Building Official for the City of Pawtucket (“Building Official”), a municipal appointed position, and member of the Warren Town Council (“Town Council”), a municipal elected position, is not prohibited from performing his duties as Building Official regarding a development project in Pawtucket in which the engineering firm of Fuss and O’Neil is providing services, notwithstanding the fact that, in his capacity as a Warren Town Council member, he voted in favor of awarding a three-year contract to Fuss and O’Neil to act as Town Engineer. The petitioner is a member of the Warren Town Council. Recently, the Town Council voted to award a three-year contract to the firm of Fuss and O’Neil for that firm to act as the Town’s Engineer. The petitioner voted in favor of awarding the contract to Fuss and O’Neil. The petitioner affirmatively represents that he has no private or personal business association with the firm of Fuss and O’Neil whatsoever. Additionally, the petitioner is the Building Official for the City of Pawtucket. Fuss and O’Neil is currently acting as the engineer for a private development project in the City of Pawtucket, which the petitioner describes as a combination residential and commercial plan. He further states that Fuss and O’Neil will be mostly involved as engineer in the site plan phase of the project and not the actual construction phase. Given this set of facts, the petitioner requests an advisory opinion as to whether he is prohibited from carrying out his duties as Building Official, including reviewing plans, issuing permits, and performing inspections on this development project, given that Fuss and O’Neil is providing engineering services for the project. Under the Code of Ethics, the petitioner 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 and employment 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 a 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). Additionally, no business associate of any person subject to the 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). A person is defined as “an individual or a business entity.” R.I. Gen. Laws § 36-14-2(7). In this instance, the facts as represented by the petitioner do not lead the Commission to conclude that the petitioner is required to recuse from carrying out his duties as Pawtucket Building Official by reason of his unrelated work as a member of the Warren Town Council. While the petitioner is employed by the Town of Pawtucket as its Building Official, and the Code would prohibit the petitioner from making decisions in that capacity that would financially impact any business associate or any business by which he is employed or represents, the Town of Warren and the Warren Town Council are not considered to be "businesses" or "business associates" under the Code of Ethics. See A.O. 97-17 (finding, inter alia, that the definition of "business" does not extend to public entities such as the Warren Town Council); 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 (term "business" as used in the Code of Ethics does not include municipal corporations such as the Town of Richmond); A.O. 2003-61 (Code of Ethics does not consider relationship between public official and public body to be that of "business associates"). Thus the petitioner’s relationship to the firm of Fuss and O’Neil, as a result of his status as a member of the Warren Town Council, does not constitute a “business association” under the Code. As such, in light of relevant provisions of the Code of Ethics and prior advisory opinions, it is the opinion of the Ethics Commission that the petitioner is not prohibited by the Code from carrying out his duties as Building Official for the City of Pawtucket which involve the firm Fuss and O’Neil, given that he is not a “business associate” of that firm for purposes of the Code of Ethics. Code Citations: § 36-14-2(3) §36-14-5(a) §36-14-5(f) §36-14-7(a) Related Advisory Opinions: A.O. 2005-31 A.O. 2003-61 A.O. 2002-55 A.O. 97-17 Keywords: Business Associate Dual Public Roles