Advisory Opinion No. 2009-39 Rhode Island Ethics Commission Advisory Opinion No. 2009-39 Re: Philip L. Hervey, AICP QUESTION PRESENTED The Petitioner, the Barrington Town Planner and Administrative Officer for the Planning Board, a municipal employee position, requests an advisory opinion regarding whether he is permitted to participate in the Town's consideration of a major land development application submitted by the Bayside Family YMCA. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Town Planner for the Town of Barrington, a municipal employee position, is permitted to participate in the Town's consideration of a major land development application submitted by the Bayside Family YMCA. The Petitioner is the Town Planner for the Town of Barrington, and also serves as the Administrative Officer for the Planning Board. He informs that the Bayside Family YMCA ("YMCA") has filed a proposal and development plans with the Town's planning department to expand its facility. It is within the Town Planner's official duties to, among other things, review and process such applications, provide comment, determine compliance with the zoning ordinance, certify that the application is complete, and to make recommendations to the Town's Technical Review Committee ("TRC"), Planning Board, and Zoning Board. The Petitioner represents that he is a member of the YMCA and uses its facilities, but that he has no other relationship with it such as service as an officer or member of the Board of Directors. Given his membership with the organization, the Petitioner asks whether the Code of Ethics prohibits his participation as Town Planner and Administrative Officer in the YMCA's development proposal and applications.[1] 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). Commission Regulation 36-14-7001 provides that a public official has reason to believe or expect that a conflict of interest exists when it is “reasonably foreseeable.” Also, a public official must recuse himself from voting or otherwise participating in his agency's consideration of a matter presented by, or concerning, his 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). Thus, if petitioner is considered a “business associate” of the YMCA, he must recuse from participation in matters concerning or brought by the YMCA, or from matters that would result in a direct financial impact to the organization. However, if he is not a “business associate” of the YMCA, he need not recuse. In order to determine whether a relationship rises to the level of a “business association” under the Code of Ethics, the Commission must examine the nature of the association and the scope of the parties’ business dealings. See, e.g., A.O. 2004-29. In the past, the Commission has concluded that public officials are "business associates" of entities for which they serve either as members of the Board of Directors or in other leadership positions that permit them to affect the financial objectives of the organization. See A.O. 98-76 (opining that a member of the Narragansett Town Council may not participate in matters concerning the Narragansett Chamber of Commerce, including the upcoming vote on a possible appropriation of funds to the organization, given that she serves on its Board of Directors). On the other hand, the Ethics Commission has generally held that mere membership in an organization, as opposed to the holding of a position as a director, officer or other position of leadership, does not create a business association requiring recusal. See A.O. 2007-53 (opining that, because a member of the Newport Harbor Commission was a mere member of the International Yacht Restoration School, Sail Newport and the Newport Yacht Club, but not on the Board of Directors or in any other type of leadership position allowing him to affect their financial objectives, he was not a “business associate” of these organizations and need not recuse from taking official action that financially impact them). A previous opinion of the Commission, A.O. 96-54, is directly on point. There, we concluded that the Code of Ethics did not prohibit members of the Town of Westerly Zoning Board of Review and Planning Board from participating in matters concerning the local YMCA in their official capacities solely by virtue of their membership with the YMCA, as long as they were not in a position at the YMCA to affect the organization's financial objectives through voting or other means. This opinion was based on our determination that membership in the YMCA, standing alone, did not rise to the level of "business associate" as that term is defined in the Code of Ethics. Other past advisory opinions have addressed similar fact patterns. See A.O. 2008-35 (member of Tiverton Zoning Board of Review may participate and vote on a petition brought by the Tiverton Land Trust for a variance to allow it to host a seasonal farmers' market on its property, notwithstanding the fact that the petitioner is a member of, and an annual contributor to, the Tiverton Land Trust); A.O. 2002-4 (volunteer at Jesse M. Smith Memorial Library is not a business associate of the library, and need not recuse from the Town's Budget Board consideration of matters that financially impact the library). Compare A.O. 97-13 (wherein a South Kingstown Recreation Commission member was required to recuse from participating in any matters involving the South Kingstown Little League given his position as the Little League’s volunteer Vice-President). Based on all of the above, we conclude that the Petitioner's membership in the YMCA, standing alone, is not sufficient to make him the YMCA's business associate. Accordingly, the Code of Ethics does not prohibit his participation as Town Planner and Administrative Assistant in the Town's review of the YMCA's development proposal and plans. Code Citations: 36-14-2(3) 36-14-5(a) 36-14-5(f) 36-14-6 36-14-7(a) Commission Regulation 6001 Related Advisory Opinions: 2008-35 2007-53 2004-29 2002-4 98-76 97-13 96-54 Keywords: non-profit boards business associates memberships