Advisory Opinion No. 2010-30 Rhode Island Ethics Commission Advisory Opinion No. 2010-30 Re: Sam Bliven QUESTION PRESENTED The Petitioner, a member of the Town of Westerly Building Code of Appeals Board, a municipal appointed position, who in his private capacity is the owner of Bliven Plumbing and Heating, requests an advisory opinion as to whether he may participate in discussion and vote regarding a request for a building code variance for property located at 480 Atlantic Avenue, given that he has done periodic plumbing work for the property owner in the past. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, a member of the Town of Westerly Building Code of Appeals Board, a municipal appointed position, who in his private capacity is the owner of Bliven Plumbing and Heating, may participate in discussion and vote regarding a request for a building code variance for property located at 480 Atlantic Avenue, notwithstanding the fact that he has done periodic plumbing work for the property owner in the past. The Petitioner is a member of the Town of Westerly Building Code of Appeals Board. In his private capacity, he is the owner of Bliven Plumbing and Heating, a business that performs work throughout southern Rhode Island and Connecticut. The Petitioner represents that, the owner of the property located at 480 Atlantic Avenue in Westerly has recently requested a building code variance in order to add an addition to the home located there. The Petitioner states that approximately one month ago his company fixed a leaky hose bib for the property owner at 480 Atlantic Avenue. He further represents that he has on occasion performed services for the property owner in the past, approximately once a year or less. He states that he is currently not performing any work for the property owner, there are no outstanding accounts owed, nor is there any current plan for future work, nor will he be performing any work on the property located at 480 Atlantic Avenue. Given this set of facts, the Petitioner requests an advisory opinion as to whether he can participate in discussion and vote regarding the request for a building code variance for the property located at 480 Atlantic Avenue, given that he has performed plumbing work in the past for that property owner. 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, a public 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). 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). In this Petitioner’s set of facts, while he has periodically performed plumbing work for the property owner seeking a building code variance before the Petitioner’s board, based on the relevant provisions of the Code and prior advisory opinions, the Petitioner and that property owner are not current business associates. Accordingly, barring the existence of any other set of facts that would implicate the prohibitions found in the Code of Ethics, the Petitioner need not recuse in the instant matter. Code Citations: § 36-14-2(3) § 36-14-5(a) § 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