Advisory Opinion No. 2008-48 Rhode Island Ethics Commission Advisory Opinion No. 2008-48 Re: Jeffrey S. Brenner, Esq. QUESTION PRESENTED The petitioner, a member of the Barrington Town Council, a municipal elected position, who is also an attorney in private practice, requests an advisory opinion as to whether he is prohibited from participating in discussion and voting regarding a proposed wind turbine project in the Town of Barrington, given that the law firm in which he is a non-equity partner is a member of the American Wind Energy Association. RESPONSE It is the opinion of the Ethics Commission that the petitioner, a member of the Barrington Town Council, a municipal elected position, who is also an attorney in private practice, is not prohibited from participating in discussion and voting regarding a proposed wind turbine project in the Town of Barrington, notwithstanding the fact that the law firm in which he is a non-equity partner is a member of the American Wind Energy Association. The petitioner is the President of the Barrington Town Council (“Town Council”). He represents that currently, the Barrington Town Council is in the process of evaluating whether a wind turbine should be constructed in the Town of Barrington. He states that the Town Council has appointed a Committee for Renewable Energy in Barrington (“CREB”) to perform necessary due diligence in connection with the feasibility of constructing a wind turbine and that he serves as the Town Council liaison to the CREB, as well as to the Barrington Wind Exploratory Committee, established by the Town of Barrington in 2007. Furthermore, he states that as a Town Council member, he voted to have the Town Manager prepare an application for a federal interest-free bond from the IRS and advocated on behalf of the construction of a wind-turbine at the Financial Town Meeting. The petitioner is also an attorney in private practice in the state of Rhode Island and a non-equity partner at Nixon Peabody LLP (“Nixon Peabody”). He states that Nixon Peabody is a member of the American Wind Energy Association (“AWEA”). He further states that there are hundreds of members of AWEA, including many law firms; indeed, the AWEA web site states that AWEA has “over 1,500 members & advocates [and is] a national trade association representing wind power project developers, equipment suppliers, services providers, parts manufacturers, utilities, researchers, and others involved in the wind industry.” AWEA’s mission statement as provided on its web page is “to promote wind power growth through advocacy, communication, and education.” The petitioner represents that Nixon Peabody was one of several firms that helped develop a “Wind Energy Siting Handbook” for AWEA. However, and most relevant to this petitioner’s set of factual circumstances, the petitioner states that AWEA has had no involvement whatsoever in the ongoing Barrington wind turbine associated matters, nor will it, as that entity is merely a professional trade association akin to the American Bar Association or the American Medical Association. Further, the petitioner affirmatively represents that Nixon Peabody has no vested interest in the wind turbine project in Barrington and does not represent any of the firms that have bid on the construction of a potential wind turbine, nor does it have any involvement with the loan that the IRS is offering the Town; in short, he states that no financial benefit whatsoever will accrue to Nixon Peabody as a result of the construction of a wind turbine in Barrington. 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). This petitioner’s request presents no facts that implicate any of the prohibitions set forth in the Code of Ethics. Even assuming, arguendo, that AWEA is a business associate of the petitioner’s firm pursuant to the Code of Ethics, a conclusion that this Commission is not making for purposes of this advisory opinion, that entity has no involvement in any matters before the Town Council and thus the petitioner’s recusal, pursuant to R.I. Gen. Laws § 36-14-5(f), is not required. Furthermore, while the petitioner’s firm’s association with AWEA may or may not be indicative of some personal feelings regarding that entity or its endeavors, personal preference alone does not support mandatory recusal under the Code of Ethics. See A.O. 2008-20 (opining that while a member of the Smithfield Planning Board’s prior association with a concerned citizen’s group, which had previously opposed a development which was currently again before the Planning Board, may or may not be indicative of some personal feelings, that personal preference alone does not support mandatory recusal under the Code of Ethics); 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). In light of the facts as represented by the petitioner and barring any other circumstance that would implicate the prohibitions found within the Code of Ethics, nothing in the Code prohibits the petitioner’s participation in matters coming before the Town Council regarding the proposed wind turbine in the Town of Barrington. 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, charter provision, ordinance, regulation or policy requires recusal under these facts. cc: Michael A. Ursillo, Esq. Code Citations : § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-5(f) § 36-14-7(a) Related Advisory Opinions : A.O. 2008-20 A.O. 2005-20 Keywords : Business Associate Recusal