Advisory Opinion No. 95-61

Re: Gene M. Carlino, Esq.

A. QUESTION PRESENTED

Whether Gene M. Carlino, a member of the Lincoln Town Council may vote on matters affecting the Lincoln Greyhound Park while he is representing an estate in a suit against the Park.

B. SUMMARY

The Rhode Island Ethics Commission holds that the Code of Ethics prohibits Mr. Carlino from voting on matters specifically affecting the Lincoln Greyhound Park.

C. DISCUSSION

1. Facts

In his private capacity, Mr. Carlino is an attorney employed by the Law Offices of Arcaro & Associates. The public position he holds is that of a Lincoln Town Councilman. In June of this year he was re-elected to a second 2 year term.

Mr. Carlino is currently representing the estate of a woman who was killed at Lincoln Greyhound Park (the "Park"). As a part of that representation, Mr. Carlino has brought a negligence suit against the Park. The Park is located in the district Mr. Carlino represents. Accordingly, he may be called upon to vote on matters which affect the Park. Concerned that his voting may constitute a conflict of interest, Mr. Carlino requested an advisory opinion on this issue. In his request, Mr. Carlino points out that some of the issues that the council is called to vote on are general in nature and some of the issues are specific. For example, some ordinances and applications can be general in the nature of zoning and liquor license ordinances which affect all businesses including the Park, whereas, an application by the Park to expand the hours for which they serve liquor would affect only the Park. Mr. Carlino also notes that his fee is contingent upon any settlement of the negligence action.

2. Analysis

This request asks the Rhode Island Ethics Commission to decide whether Mr. Carlino's private representation in a lawsuit against the Park will create a conflict of interest with his public duty as a Town Councilman. The Code of Ethics provision relevant to this inquiry is R.I. Gen. Laws § 36-14-5(a). The Advisory opinions on point are Nos. 84-40 and 90-20.

In accordance with both R.I. Gen. Laws § 36-14-5(a) and the above noted advisory opinions, the Commission holds that the Code of Ethics prohibits Mr. Carlino from voting on matters specifically affecting the Lincoln Greyhound Park. Under R.I. Gen. Laws § 36-14-5(a) Mr. Carlino is not permitted to have any interest which is in substantial conflict with the proper discharge of his duties as a Town Councilman. When Mr. Carlino assumed the representation of the plaintiff in this case, he accepted a financial interest in the case. As a result of said interest Mr. Carlino would be in substantial conflict with the proper discharge of his duties as a Town Councilman, as any discussion or vote specifically regarding the Park could ultimately impact the result of the lawsuit. Accordingly, a conflict of interest would arise if Mr. Carlino participated in the discussion of or voted on any issue which would affect the Park specifically.

The two advisory opinions noted above were consistent with the holding in this opinion. Both of the previous opinions involved council members who had an interest outside of their council duties, which could be affected by council votes. In both of these opinions the Commission held that the members could not vote on matters specifically involving that outside interest.

Since Mr. Carlino is prohibited from voting on matters specifically affecting the Lincoln Greyhound Park, in the event any such matter comes before him, he should exercise notice and recuse. In such event, Mr. Carlino should (a) advise the Town Council, in writing, of the nature of his interest in the matter at issue, and (b) recuse from any participation or vote in connection with said matter. Any recusal notices should likewise be filed pursuant to R.I. Gen. Laws § 36-14-6. However, as Mr. Carlino pointed out, there are general issues which arise that affect all Lincoln businesses. With regard to any matters which will not impact the Park specifically, Mr. Carlino may participate in the discussion of or vote on any such issues.

Keywords

Litigation

Business Asssociate