Advisory Opinion No. 2009-23 Rhode Island Ethics Commission Advisory Opinion No. 2009-23 Re: Stephen R. Archambault QUESTION PRESENTED The Petitioner, a member of the Smithfield Town Council, a municipal elected position, requests an advisory opinion regarding whether he is prohibited from voting on matters that may involve Esmond Concerned Citizens, given his past business association with that entity. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a member of the Smithfield Town Council, a municipal elected position, is not prohibited from voting on matters that may involve Esmond Concerned Citizens, notwithstanding his past business association with that entity, given that the association terminated in 2004. However, if Attorney Timothy Robenhymer represents Esmond Concerned Citizens before the Town Council, the Petitioner must recuse, pursuant to R.I. Gen. Laws § 36-14-5(f), given his current business association with that attorney. The Petitioner is a member of the Smithfield Town Council (“Town Council”) and was elected in November 2006. In his private capacity, the Petitioner is an attorney-at-law and is licensed to practice in the State of Rhode Island. The Petitioner states that in 2003, prior to his election to public office, he and another attorney, Timothy Robenhymer, were retained by a group called Esmond Concerned Citizens (“the group”) to represent the group’s interests before various municipal entities in opposition to a proposed development in the Town of Smithfield. The proposed development was to consist of 336 apartments, to be erected at the corner of Route 44 and Esmond Street in Smithfield and the proposed developer was Churchill and Banks. The group was concerned that the proposed development would increase traffic and create too high of a population density for the area that was the subject of the proposal. The Petitioner represents that he ended his business relationship with the group in 2004 and has no current affiliation or association with that group whatsoever. Eventually, the Town of Smithfield itself became involved in litigation that culminated in a writ of certiorari to the Rhode Island Supreme Court to review a decision of the State Housing Appeals Board in regard to Churchill and Bank’s application to the Smithfield Zoning Board for the proposed development. The Court issued a factually and legally complex opinion that had the practical effect of stopping the proposed development. See Town of Smithfield v. Churchill and Banks, LLC, 924 A.2d 796 (R.I. 2007). Since the issuance of the Supreme Court’s opinion in 2007, Churchill and Banks has filed a new proposal for the development of its 28-acre property with the town, that is, to construct a mixed-use development based on a village concept. Currently, Churchill and Banks has an application for a zoning amendment pending before the Town Council. It is anticipated that there will again be neighborhood opposition to the proposal. Given this set of facts, the Petitioner requests an advisory opinion as to whether he is prohibited from voting on matters concerning the new development, given his prior business association with Esmond Concerned Citizens and the potential for that group’s involvement in the present matter. 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). Additionally, an official must recuse from participating in any matter concerning or presented by a business associate. 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). In prior advisory opinions, the Commission has found that the attorney-client relationship creates a business association for purposes of the Code. See, e.g., A.O. 2007-5 (stating that “[t]he Commission has long held that an attorney and his or her clients are considered to be business associates as that term is defined in the Code of Ethics”); A.O. 2003-17 (opining that attorney’s representation of Petitioner’s company created a business association). It is worth noting, and indeed, is of central import to this Petitioner’s request, that an attorney-client relationship ceases being a business association for purposes of the Code of Ethics once the attorney no longer represents the client “in an ongoing matter, bills for prior representation have been paid and there are no plans for specific representation in the near future . . .” Id. The Petitioner’s business association with Esmond Concerned Citizens terminated in 2004. This Commission has consistently found that no inherent conflict of interest exists when a prior business relationship between a public official and a private party has ended; 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. However, while the Petitioner’s relationship with Esmond Concerned Citizens has terminated, he represents that he does have an ongoing business relationship with Attorney Robenhymer. The Petitioner states that he and Attorney Robenhymer are not legal partners, nor do they share profits, nor are they joined together in any other type of legal entity, but they do share office space, appear on the same letterhead, and are currently working on several legal matters together. This Commission has previously determined that cotenants of a common space who share some expenses, such as utilities, are business associates under the Code. See A.O. 2008-43 (opining that two persons who shared common expenses such as utilities, maintenance and dumpster fees, one of whom occupied approximately 30% of the floor space within the other’s business, were business associates for purposes of the Code); A.O. 2007-6 (opining that two attorneys who did not share letterhead, profits, or work on legal matters together, but did share office space and expenses, were business associates for purposes of the Code). Additionally, in this instances, the Petitioner states that he and Attorney Robenhymer are currently working on several legal matters together. Thus, given all of these facts, the Commission concludes that the Petitioner and Attorney Robenhymer are business associates for purposes of the Code. Accordingly, while the Petitioner is not required to recuse in this matter based on his prior business association with Esmond Concerned Citizens, given that that relationship has terminated, he is required to recuse pursuant to R.I. Gen. Laws § 36-14-5(f) if Attorney Robenhymer represents that group, or any other entity, before the Town Council, given their ongoing business association. 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. 2007-5 A.O. 2004-3 A.O. 2003-17 A.O. 2003-17 A.O. 98-25 A.O. 97-112 Keywords : Business Associate