Advisory Opinion No. 2010-47 Rhode Island Ethics Commission Advisory Opinion No. 2010-47 Re: Michael W. Miller, Esq. QUESTION PRESENTED The Petitioner, the Town Solicitor for the Town of Middletown, a municipal appointed position, requests an advisory opinion regarding whether he must recuse from participating in the Zoning Board and Planning Board's consideration of a petition for a special use permit, given that one of his private clients has been retained to provide information and testimony in support of the permit application. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Town Solicitor for the Town of Middletown, a municipal appointed position, must recuse from participating in the Zoning Board and Planning Board's consideration of a petition for a special use permit, given that one of his private clients has been retained to provide information and testimony in support of the permit application. The Petitioner is the Town Solicitor for the Town of Middletown. In that capacity, the Petitioner is responsible for providing legal advice to the Town Council and to various Town departments and boards, including the Zoning Board and Planning Board. The Petitioner states that there is currently a petition before the Zoning Board seeking to obtain a special use permit to construct and operate a one mega-watt wind turbine on property owned by Louise Strauss ("Strauss"). In addition to the Zoning Board's consideration of the matter, the petition will also go before the Town's Planning Board for an advisory opinion. As Solicitor, the Petitioner or other members of his law firm will be expected to attend meetings of the Zoning Board and Planning Board to provide legal counsel as to the Strauss petition. In his private capacity the Petitioner is a practicing attorney. The Petitioner states that a business known as Integrity Energy Group ("IEG") has been hired to construct the Strauss wind turbine. He states that IEG has, in turn, retained as a consultant one of the Petitioner's ongoing clients (hereinafter, "the consultant"). The Petitioner informs that his client, the consultant, is very involved in the Strauss project, that much of the information presented to the Zoning Board and Planning Board relative to the project will be based on the consultant's work product, that the consultant plans to attend the board meetings involving the project, and that the consultant anticipates that he will testify and present information at such meetings. Given these representations, the Petitioner asks whether he should recuse from participating as Solicitor in the Town's consideration of the Strauss petition. Under the Code of Ethics, a public official such as the Petitioner 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). An official will have an interest in substantial conflict with his or her official duties if it is likely that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a business associate, an employer, or any business that the public official represents. See R.I. Gen. Laws § 36-14-7(a). Additionally, R.I. Gen. Laws § 36-14-5(f) states that “[n]o business associate of any person subject to this Code of Ethics shall represent him or herself or any other person . . . before the state or municipal agency of which the person is a member or by which the person is employed unless . . . the . . . person subject to th[e] Code of Ethics shall recuse him or herself from voting on or otherwise participating in the said agency's consideration and disposition of the matter at issue.” 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 an ongoing attorney-client relationship creates a business association for purposes of the Code. See, e.g., A.O. 2007-54 (member of Smithfield Zoning Board is prohibited from participating in matter before the Board given that he has an ongoing attorney-client relationship with one of the attorneys representing the appellants); 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 an attorney’s representation of petitioner’s company created a business association); A.O. 98-142 (finding that a Coastal Resource Management Council member must recuse from participating in matters involving a law firm while he has an ongoing attorney/client relationship with a member of that firm). It is worth noting 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 . . . .” A.O. 2003-17. In this matter, the Petitioner states that he has an ongoing attorney-client relationship with the consultant, who is presenting work product and testimony before both the Zoning Board and Planning Board. As such, the Petitioner and the consultant are business associates as defined by R.I. Gen. Laws § 36-14-2(3), and the Petitioner must recuse from his official duties as Solicitor before the Zoning Board and Planning Board on this particular matter. Notice of recusal must be filed with the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. Code Citations: § 36-14-2(3) § 36-14-5(a) § 36-14-5(f) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2007-54 A.O. 2007-5 A.O. 2006-44 A.O. 2003-17 A.O. 98-142 Keywords: Business Associate