Advisory Opinion No. 2008-43 Rhode Island Ethics Commission Advisory Opinion No. 2008-43 Re: Caswell Cooke, Jr. QUESTION PRESENTED: The petitioner, a member of the Westerly Town Council (“Town Council”), a municipal elected position, requests an advisory opinion as to whether he is prohibited from participating in the discussion and voting regarding the Town Council’s consideration of an applicant for the position of Town Manager, given that he and the applicant are currently “co-tenants” of a commercial property and share common utilities and maintenance expenses. RESPONSE: It is the opinion of the Ethics Commission that the petitioner, a member of the Westerly Town Council (“Town Council”), a municipal elected position, is prohibited from participating in the discussion and voting regarding the Town Council’s consideration of an applicant for the position of Town Manager, given that he and the applicant are currently “co-tenants” of a commercial property and share common utilities and maintenance expenses. The petitioner is a member of the Westerly Town Council. He is states that the town is in the process of hiring a new Town Manager and that the final decision as to the selection of the Town Manager rests with the Town Council. Apart from his duties as a member of the Town Council, the petitioner states that he is part-owner of a local seasonal deli and convenience store, the Breachway Market, which operates from May until approximately Labor Day of each year. He further states that, in the past, one of the applicants for the position of Town Manager (“the applicant”) has sublet space within the petitioner’s store from him for the operation of an ice-cream business, separate and apart from the petitioner’s business, albeit located inside of the physical premises of the petitioner’s business. The petitioner states that the applicant, while still operating his business from within the premises of the petitioner’s business, currently no longer sublets space from the petitioner, but rather, has his own separate lease with the property owner for the rental space in question. The petitioner represents that the applicant’s business occupies approximately 30% of the available floor space within the petitioner’s store and that the applicant runs his business according to the schedule determined by the petitioner’s hours of operation. Finally, the petitioner states that while he and the applicant are not partners in business, he characterizes their relationship as one in which they are “co-tenants” of the same commercial space, and further, states that he and the applicant share the cost of common bills such as utilities, maintenance, and dumpster fees. Given all of the foregoing facts, the petitioner now requests an advisory opinion as to whether he is prohibited by the Code of Ethics from participating in the Westerly Town Council’s consideration of the applicant for the position of Town Manager. 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). R.I. Gen. Laws § 36-14-5(d) provides that a public official may not use his office for pecuniary gain, other than provided by law, for himself, a family member, employer, business associate, or a business that he represents. 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 the facts as presented by this petitioner, while the applicant is no longer subletting commercial space from the petitioner, but rather, has executed a separate lease agreement directly with the property owner, the relationship between the petitioner and the applicant nonetheless manifests a number of indicia that indicate the existence of a “business association,” including the fact that the petitioner and the applicant share common expenses such as utilities, maintenance and dumpster fees, the applicant’s business occupies approximately 30% of the floor space within the petitioner’s business, and the applicant’s business hours of operation are restricted by the hours of operation of the petitioner’s business, the Breachway Market. The Commission is of the opinion that such an inextricably intertwined relationship is sufficient to constitute a “business association” for purposes of the Code. See R.I. Gen. Laws § 36-14-2(3). Thus, pursuant to R.I. Gen. Laws §§ 36-14-5(a), 5(d), 5(f), and 7(a), the petitioner must recuse from the Town Council’s consideration of the applicant for the position of Town Manager. See A.O. 95-67 (opining that members of the Judicial Nominating Committee may not participate in the selection process in connection with consideration of a particular applicant who is a business associate of that Commission member). Notice of recusal should be filed with both the Town of Westerly and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Code Citations: § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-5(f) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 95-67 Keywords: Business Associates Recusal