Advisory Opinion No. 2009-13 Rhode Island Ethics Commission Advisory Opinion No. 2009-13 Re: Scott Wolf QUESTION PRESENTED The Petitioner, a member of the Zoning Board of Review for the City of Providence, a municipal appointed position, who in his private capacity is the Executive Director of Grow Smart Rhode Island, requests an advisory opinion as to whether he may participate in and vote on a pending application before the Zoning Board of Review, given that the applicant, Dynamo House, LLC/Struever Brothers, employs a member of the Board of Directors of Grow Smart Rhode Island. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Zoning Board of Review for the City of Providence, a municipal appointed position, who in his private capacity is the Executive Director of Grow Smart Rhode Island, may participate in and vote on a pending application before the Zoning Board of Review, notwithstanding that the applicant, Dynamo House, LLC/Struever Brothers, employs a member of the Board of Directors of Grow Smart Rhode Island, since the member of the Board of Directors of Grow Smart Rhode Island will not appear before the Zoning Board of Review in support of the application. The Petitioner represents that he has been a member of the Zoning Board of Review for the City of Providence (“Zoning Board”) since 2003. The Petitioner advises that pending before the Zoning Board is an application from Dynamo House, LLC/Struever Brothers for a dimensional variance for Dynamo House, a mixed use development property with plans for a museum, hotel, office space, and restaurant. He states that Struever Brothers is the general contractor for Dynamo House. The Petitioner informs that in his private capacity, he is the Executive Director for Grow Smart Rhode Island (“Grow Smart”), a statewide public interest group. The Petitioner advises that the Board of Directors determines his salary and has the authority to remove him from his position as Executive Director. The Petitioner further advises that a member of the Board of Directors for Grow Smart, Samuel Bradner (“Bradner”), is a Senior Development Director for Struever Brothers. In a subsequent telephone conversation between the Petitioner and Commission Staff, the Petitioner advised that Bradner will not appear before the Zoning Board in support of the application. Given these facts, the Petitioner asks whether he may participate in and vote on the application without running afoul of the Code of Ethics. Under the Code of Ethics, the Petitioner, as a member of the Zoning 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), 36-14-7(a). An official will have an interest in substantial conflict with his or her 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, a business associate, an employer, or any business that the public official represents. See R.I. Gen. Laws § 36-14-7(a). Further, he is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or represents. See R.I. Gen. Laws § 36-14-5(d). “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). In addition, 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.” Commission Regulation 36-14-5002 states that “[a] person subject to this Code of Ethics must also recuse himself from participation and notify, in writing, his [or her] board/agency of an interest when . . . his or her employer, or the interests of his or her employer appear before his or her board/agency.” As an initial matter, it must be noted that neither the Petitioner's employer, Grow Smart, nor any of its individual Directors, including Bradner, stand to receive any direct financial impact as a result of the Zoning Board's decision relative to Struever Brothers' variance application. Furthermore, the Petitioner represents that Bradner is not appearing before the Zoning Board on behalf of Struever Brothers. Although Bradner's employer, Struever Brothers, will be impacted by a decision of the Zoning Board, the Petitioner and Struever Brothers are not business associates and, therefore, the relationship between the Petitioner and Struever Brothers is too remote to require recusal under the Code. See, e.g., A.O. 2002-76 (mere fact that petitioner is considered a "business associate" of a corporation does not automatically make petitioner a business associate of the corporation's other business associates, because petitioner is not joined together with the corporation's other business associates to achieve a common financial objective). The Commission has found, in analogous opinions, that public officials were not prohibited by the Code from participating in or voting on matters involving their spouses’ employers or business associates since such relationships were too remote to require recusal under the Code. See A.O. 2006-18 (opining that a member of the Barrington Town Council was permitted to participate in Town Council discussion and voting relative to the Town's acquisition of park land and the subsequent creation thereon of baseball fields for use by the Little League, notwithstanding that the Petitioner's spouse was a Little League coach, served on its board and was a vocal advocate for the purchase and development of the park, since it was the Petitioner's spouse rather than the Petitioner herself who is a business associate of the Little League and the relationship between the Petitioner and the Little League was too remote to require her recusal under the Code); A.O. 99-28 (Zoning Board of Review member not prohibited from participating in review of application for special use permit to construct drive-thru, notwithstanding fact that applicant employed his spouse, since Petitioner's relationship with applicant was too remote to implicate prohibitions set forth in Code and there is no evidence that construction of drive-thrus would impact his spouse's employment). Accordingly, the Commission opines that the Petitioner may participate in and vote on a pending application before the Zoning Board of Review, notwithstanding that the applicant, Dynamo House, LLC/Struever Brothers, employs a member of the Board of Directors of Grow Smart Rhode Island, since the member of the Board of Directors of Grow Smart Rhode Island will not receive a direct financial benefit as a result of the Zoning Board's decision and he will not appear before the Zoning Board in support of the application. Code Citations : 36-14-2(3) 36-14-5(a) 36-14-5(f) 36-14-7(a) Commission Regulation 36-14-5002 Related Advisory Opinions : A.O. 2006-18 A.O. 2002-76 A.O. 99-28 A.O. 98-45 Keywords : Business Associate Recusal