Advisory Opinion No. 2009-47 Rhode Island Ethics Commission Advisory Opinion No. 2009-47 Re: Denise L. Stetson QUESTION PRESENTED The Petitioner, Town Planner for the Town of Richmond, a municipal appointed position, requests an advisory opinion as to what limitations are placed upon her by the Code of Ethics when she hires a surveyor or engineer to do private map work regarding her property to submit to FEMA to adjust a flood plain area before new FEMA maps are adopted in February. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, Town Planner for the Town of Richmond, a municipal appointed position, is not restricted in her selection of a surveyor or engineer to do private map work regarding her property to submit to FEMA to adjust a flood plain area before new FEMA maps are adopted in February, but that, while that individual is performing such work for her, he or she will be the Petitioner’s business associate, and thus, those provisions of the Code involving business associates will apply to the Petitioner. The Petitioner is the Town Planner for the Town of Richmond, and, as such, also serves as Administrative Officer to the Planning Board. She states that a significant portion of her job involves reviewing submitted plans for consistency with the Town’s regulations and certifying them complete before scheduling them to go before the Planning Board. She further states that she also makes recommendations to the Planning Board regarding applications, drafts the decisions of the Planning Board, and handles administrative tasks involved with subdivisions and land development. She states that in carrying out her duties, she works with lawyers, engineers, surveyors, and plan applicants. She further states that there is a provision within Article XI of the Richmond Land Development and Subdivision Regulations that provides for an Alternate Administrative Officer for the Planning Board if the Town Planner is unable to perform his or her duties for whatever reason. The Petitioner states that she is also a property owner and resident of the Town of Richmond. She states that she is looking to hire either a surveyor or engineer to do some private map work regarding her property to submit to FEMA to adjust a flood plain area before the new FEMA maps are adopted in February. She further states that she is currently considering hiring such a professional whose business is based out of Coventry and who ordinarily does not appear before, or interact with, the Richmond Planning Board. Given her job duties, the Petitioner asks whether she is limited by the Code of Ethics in hiring a professional to perform the aforementioned work. Under the Code of Ethics, a public official or employee may not participate in any matter in which she 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 her official duties if she has reason to believe or expect that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of her official activity, to herself, a family member, a business associate, an employer, or any business which she 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 herself from voting or otherwise participating in her agency's consideration of a matter presented by, or concerning, her 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). It is the opinion of this Commission that the Petitioner is not limited by the Code of Ethics in her selection of a professional to act as a surveyor or engineer to do some map work to submit to FEMA to adjust a flood plain area on her property. However, once hired, and until all outstanding balances are taken care of and there is no plan for specific transactions in the near future, that person would be the Petitioner’s business associate. See A.O. 2007-54 (opining that, in the context of an attorney-client business association, the business association terminates for purposes of the Code of Ethics once there are no ongoing matters, bills for prior representation have been paid and there are no plans for specific representation in the near future). Specifically, the prohibitions found at R.I. Gen. Laws §§ 36-14-5(a), (d), (f), (h), 7(a), and Commission Regulations 36-14-5002, 5009, 5010 would apply to the Petitioner. Accordingly, those provisions in the Code regarding prohibitions placed on public officials in carrying out their official duties when such duties involve either a financial impact to a business associate, or interactions with a business associate, would apply to the Petitioner, and she is cautioned to recuse and/or remove herself from her duties in accordance with R.I. Gen. Laws § 36-14-6 if such circumstances present themselves. Code Citations: 36-14-2(3) 36-14-5(a) 36-14-5(d) 36-14-5(f) 36-14-5(h) 36-14-6 36-14-7(a) Commission Regulation 5002 Commission Regulation 5009 Commission Regulation 5010 Commission Regulation 7001 Advisory Opinions Cited: A.O. 2007-54 Keywords: business associates