Advisory Opinion No. 95-49

Re: David F. Fox, Esq.

This Advisory Opinion is addressed to David E. Fox, attorney at law. Mr. Fox has advised the Ethics Commission that he serves as legal counsel to the Portsmouth Water and Fire District Administrative Board, a seven-member board elected annually by special elections held in June. The jurisdiction of that board includes the selection of an accounting firm to perform accounting services for the Water and Fire District.

Mr. Fox has requested an Advisory Opinion from the Ethics Commission as to whether a board member of the Water and Fire District may participate or vote in the selection of an accounting firm when that board member employs one of the accounting firms on a personal level such as using the accountant for tax return preparation. He also requests advice as to whether a board member who uses a boat slip owned by one of the partners in an accounting firm that is submitting a proposal may participate or vote in connection with said matter.

The Ethics Commission has previously concluded that the relationship between an individual and an attorney who performs legal services for that individual represents "business associate" under the Code of Ethics. Likewise, we believe that the utilization of a boat slip involves more than a nominal value and that, at a minimum, a "appearance of impropriety" would result for an individual to participate or vote in the matter in which the applicant provides a personal benefit to that person.

We therefore conclude that in each case the individual board member should (a) notify the Portsmouth Water and Fire District, in writing, of the nature of his interest in the matter at issue, and (b) recuse from any participation or voting in connection with said matter. Notice of said recusal should also be filed with the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6.

However, if the Portsmouth Water and Fire District Administrative Board cannot achieve quorum and perform its governmental function due to the recusals recommended above, the rule of necessity is triggered. Board members may invoke the rule of necessity and vote without violating the Code of Ethics provided they do not directly benefit from the decisions made. We specifically recommend that the two affected members should confer among themselves, and that one person whose connection to the accounting firm will not influence his decision shall be permitted to participate and vote in the matter at issue. The other person should exercise the notice and recusal sections of R.I. Gen. Laws § 36-14-6. In addition, the person participating should make public disclosure of his relationship to the accounting firm and, notwithstanding that relationship, the basis upon which he feels he can participate and vote in the matter, all prior to his participating and voting in connection with same.

Keywords

Business Associate

Financial Interest

Rule of Necessity