Advisory Opinion No. 2010-16 Rhode Island Ethics Commission Advisory Opinion No. 2010-16 Re: Charles G. Newton, Jr. QUESTION PRESENTED The Petitioner, a member of the East Greenwich Planning Board, a municipal appointed position, who in his private capacity is the Publisher of My02818.com, a local news and information web site, requests an advisory opinion as to whether he must recuse when entities that advertise on My02818.com appear before the Planning Board. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a member of the East Greenwich Planning Board, a municipal appointed position, who in his private capacity is the Publisher of My02818.com, a local news and information web site, must recuse when an entity that advertises on My02818.com appears before the Planning Board pursuant to R.I. Gen. Laws § 36-14-5(f), if the Petitioner is in a current business association with that entity. The Petitioner is a member of the East Greenwich Planning Board (“Planning Board”). He represents that, in his private capacity, he is the publisher of My02818.com, a local news and information web site focusing on East Greenwich, which reports on local news and activities related to local government, schools, sports and the like. In a telephone conversation with Ethics Commission Staff subsequent to the receipt of the Petitioner’s written request for an advisory opinion, the Petitioner represented that the web site is wholly owned by him. He states that the web site is advertiser supported, in that revenues are generated from individuals and businesses paying to have their advertisements appear on the site. The Petitioner further represents that a small percentage of the advertisers on the web site (approximately 2-3%) are real estate companies and brokers or developers who may on occasion appear before the Planning Board on official matters. He states that many of these advertisers advertise on an intermittent basis and that the revenue generated from any individual advertiser is generally small, averaging in the $300.00 per month range. The Petitioner states that, in his role as publisher, while he does occasionally come into contact with advertisers, it is primarily the sales force that is responsible for maintaining contact with advertisers. Given this set of facts, the Petitioner requests an advisory opinion as to whether he must recuse if entities that advertise on My02818.com appear before the Planning Board. The Code of Ethics provides that the Petitioner shall not have any interest, financial or otherwise, direct or indirect, or engage in any employment or transaction that is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). Additionally, the Code provides that the Petitioner shall not in any way use his public office or confidential information received through his holding any public office to obtain financial gain, other than that provided by law, for himself, a business associate or any business by which the Petitioner is employed. See R.I. Gen. Laws § 36-14-5(d). A "business associate" is an individual or business entity joined together with another individual or business entity to achieve a common financial objective. See R.I. Gen. Laws § 36-14-2(3); 36-14-2(7). Finally, section 5(f) of the Code requires a public official to recuse from participation in his agency's consideration or disposition of any matter for which the official's business associate appears to represent any person's interest. See R.I. Gen. Laws § 36-14-5(f). In this Petitioner’s set of facts, given that he is the sole owner of My02818.com, business associates of that entity are to be considered business associates of the Petitioner. If a current business associate of the Petitioner appears before the Planning Board, he must recuse pursuant to R.I. Gen. Laws § 36-14-5(a), (d), and (f). However, the Commission has consistently found that recusal is not required when a prior business relationship between a public official and a private party has ended, no outstanding accounts exist between the parties, and there is no ongoing or anticipated future relationship between the parties. In such instances, a public official may participate in matters involving his or her former business associate, assuming no other conflicts are present. See A.O. 2008-67 (opining that a member of CRMC, who is also an attorney in private practice, need not recuse from matters involving the Crown Plaza Hotel and the Holiday Inn Express, given his relationships with those entities are past “business associations” as he is not currently representing them, nor do they have outstanding balances with him, nor does he have plans for specific representation of any of the three in the near future); A.O. 2004-31 (opining that a member of the Jamestown Town Council may participate in the Council’s discussion and vote provided that there is no ongoing or anticipated business association between the Petitioner and the engineering firm appearing before the Council); A.O. 2003-54 (concluding that a Warren Planning Board member may participate in the Board’s consideration of matters involving an applicant with whom he has worked in the past, provided that no business relationship currently exists and is not anticipated in the future). As to the issue of whether any given business association this Petitioner has with a specific advertiser is a current or past business association, that question requires a matter-by-matter analysis based on the particular facts of the situation; thus, if unsure, the Petitioner is encouraged to either recuse from participation in matters coming before him, in accordance with R.I. Gen. Laws § 36-14-6, or seek further guidance from this Commission. Therefore, it is the opinion of the Ethics Commission that this Petitioner must recuse, in accordance with R.I. Gen. Laws § 36-14-6, from participation in Planning Board matters when entities that have an ongoing business association with My02818.com appear before the Planning Board, or will be financially impacted by actions of the Planning Board, pursuant to R.I. Gen. Laws § 36-14-5(a), (d) and (f). Specifically, the Petitioner must recuse from matters involving any entity currently advertising on My02818.com, or that has outstanding accounts with My02818.com, or when there is an anticipated future relationship between the parties. Code Citations: § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-5(f) § 36-14-7(a) Related Advisory Opinions: A.O. 2008-67 A.O. 2004-31 A.O. 2003-54 Keywords: Business Associate(s)