Advisory Opinion No. 95-67

Re: Alan S. Flink, Esq.

A. QUESTION PRESENTED

Whether members of the Judicial Nominating Commission may participate and vote on matters concerning judicial applicants to whom they are associated as partners and/or associates employed by the same firm or as business associates.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that members of the Judicial Nominating Commission who are associated with judicial applicants as partners or associates employed by the same law firm or as business associates may not participate in the selection process in connection with consideration of the particular applicant who is a colleague of the Commission member. This decision is based on the Commission's finding that partners and associates employed by the same law firm fall within the Ethics Code's definition of "business associate." Pursuant to R.I. Gen. Laws § 36-14-5(a), (d), and (f), a member of the Judicial Nominating Commission may not participate in matters involving and/or affecting one of his or her "business associates."

C. DISCUSSION

1. Facts

The petitioner, Alan S. Flink, a partner with the law firm of Edwards and Angell and a member of the Judicial Nominating Commission, requests an advisory opinion, on behalf of the members of said Commission, as to whether (a) lawyer-members may participate in the judicial candidate selection process of applicants with whom they are associated as partners or associates employed by the same law firm, and (b) whether a member may participate in the consideration of a judicial applicant when said applicant is a business associate of the public official.

The petitioner advises that the statute pertaining to the Judicial Nominating Commission, R.I. Gen. Laws § 8-16.1, provides that said Commission will consist of nine members appointed by the Governor. The Commissioners shall serve four year staggered terms. The Commission's purpose is to submit to the Governor between three to five names of highly qualified persons for each State court vacancy. The Governor is required to fill the vacancy from the list prepared by the Commission. When the Commission is informed of a vacancy in any of the State Courts, it advertises for applicants in newspapers of general circulation within the State. At the end of the application period, the Commission determines by a majority vote which applicants are to be interviewed. Applicant interviews are then scheduled during public session meetings. The public may participate in the judicial selection process by submitting written comments or testifying in person before the Commission. The Commission votes in public session on the candidates to be included on the list to be presented to the Governor, who then selects a judge from the list of nominees submitted.

Mr. Flink advises that a partner from his law firm is currently in the judicial applicant pool to fill a vacancy of the Rhode Island Supreme Court. The petitioner expects that during his four year term other judicial applicants may be members of his firm. He also expects that other members of the Judicial Nominating Commission also may be faced with comparable situations in the future. The petitioner avers that he is not aware of any provision of the Code of Ethics which challenges the propriety of a Commission member's full participation in the judicial selection process. In addition, Mr. Flink suggests that a Commissioner who votes to recommend a partner or business associate does not benefit from this official act, and that the eventual nomination of a partner or business associate would actually occasion the loss of a valuable member of the Commissioner's firm.

2. Analysis

At issue is this advisory opinion request is whether the Code of Ethics will allow a lawyer-member of the Judicial Nominating Commission to participate in the selection process involving an applicant with whom said member is associated as a colleague at a common firm or as a business associate. Relevant Code provisions are as follows: R.I. Gen. Laws § 36-14-5(a), providing that a public official may not have "any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his or her duties...in the public interest;" R.I. Gen. Laws § 36-14-7(a), providing that a public official may not have "an interest which is in substantial conflict with the proper discharge of his or her duties...in the public interest if he or she has any reason to believe or expect that he or she...or any business associate, or any business by which the person is employed or which the person represents will derive a direct monetary gain or suffer a direct monetary loss, as the case may be, by reason of his or her official activity;" R.I. Gen. Laws § 36-14-5(d), providing that no person subject to the Code may "use in any way his or her public office or confidential information received through his or her holding any public office to obtain financial gain...for him or herself...or business associate or any business by which the person is employed or which the person represents;" and R.I. Gen. Laws § 36-14-5(f), prohibiting business associates of any public official or public employee from "representing him or herself or any other person...before the state or municipal agency of which the person is a member...unless (i) he or she shall first advise the state or municipal agency of the nature of his or her business relation with the said person subject to this Code of Ethics, and (ii) the said person subject to this Code shall recuse him or herself from voting on or otherwise participating in said agency's consideration or disposition of the matter at issue."

It is the opinion of the Rhode Island Ethics Commission that members of the Judicial Nominating Commission may not participate in the judicial selection process when considering an applicant with whom said member is associated as a partner and/or associate employed by the same law firm or as a business associate. The Commission bases its ruling on the fact that the relationship among members of the same law firm represents that of "business associates," defined by R.I. Gen. Laws § 36-14-2(8) to mean "a person joined together with another to achieve a common financial objective." A public official's participation in matters involving a "business associate" would violate Code provisions which prohibit a public official from participating in matters when said public official has an interest, in this case based on the relationship of "business associate," which is in substantial conflict with the proper discharge of his or her duties in the public interest. Each of the three Code provisions referenced above are applicable here and each acts as a bar to Mr. Flink's participation with respect to applicants from his law firm. Our opinion does not limit Mr. Flink's participation or voting in connection with any other applicants and relates solely to those who are "business associates" of his, as defined in R.I. Gen. Laws § 36-14-2(8).

The Rhode Island Ethics Commission has ruled in various instances concerning the relationship of "business associates" and the impropriety of a public official's involvement in any matter pertaining to anyone to whom he or she is so associated. In 1987, for example, the Ethics Commission ruled that a member of the Bristol Zoning Board may not participate in, influence, or vote on any matter involving the law firm in which his brother, also a co-owner of real estate with the petitioner, is a partner. See Advisory Opinion 87-12. In 1989, the Commission ruled that the Code of Ethics would not allow a Councilperson for the City of Cranston to vote or otherwise participate in a zoning application coming before the City Council involving an individual who is a co-employee of the petitioner in his private employment, as well as another individual who is a major stockholder in the business which employs the petitioner. In that matter, the Commission held that "the opinion is based upon the fact that the particularized relationship between the petitioner and the individuals may represent a relationship as 'business associates' under the Rhode Island ethics law and, at a minimum, such participation or vote would otherwise result in the appearance of impropriety prohibited under the law." See Advisory Opinion 89-37.

In other holdings, the Commission has consistently ruled against allowing a public official to participate in a matter involving a "business associate." A member of the Middletown Zoning Board was advised not to participate in matters involving her landlord when such matters appear before her in her official capacity based on the finding that the petitioner's relationship to her landlord is that of a "business associate" under the Code. See Advisory Opinion 91-18. In another ruling, a member of the Cranston City Council was advised to exercise notice and recusal when the Council considered matters pertaining to the law firm which refers business to the petitioner in his private employment as an independent contractor. See Advisory Opinion E87-1. In 1993, the Commission concluded that the Code would not permit a member of the Coventry Planning Board to participate or vote in connection with matters concerning property owned by a real estate broker by whom the petitioner is employed as an independent contractor/salesperson. See Advisory Opinion 93-2. Similarly, the Commission ruled that the President of the West Warwick Town Council may not participate in a matter involving a restaurant owner to whom he supplies food in his private capacity as a market owner in light of the financial nexus between said Council member and the business owner. However, the associations between the business owner and other members of the West Warwick Town Council--the business owner's insurance agent, the owner of a school his child attends, and a frequent customer at his restaurant--were not deemed relationships that assume the nature of "business associate" as defined by the Code of Ethics. See Advisory Opinion 93-21.

Thus, this Commission has consistently held that the existence of a financial nexus between a public official and an individual appearing before said public official in his or her official capacity disqualifies that public official from involvement in any matter involving said individual. Mr. Flink's advisory opinion request presents no facts distinguishing the members of the Judicial Nominating Commission from the petitioners in the advisory opinions discussed above. Clearly, at the time Mr. Flink would be considering the application of a member of his firm the two would be "business associates;" they have an easily identified financial nexus. Just as clearly, an applicant has a monetary/financial interest at stake with respect to the Commission's deliberations (i.e., his or her salary and benefits as a judge). The fact that the salary and benefits at issue may be greater or less than those flowing to the applicant, whether in the public or private sector, at the time he or she is being considered by the Commission is not germane; the salary and benefits that would be received were the applicant to be appointed to a judicial position necessarily constitute a monetary/financial interest that falls within the purview of the Code of Ethics. As a result, no basis exists for this Commission to deviate from the conclusion that the Code of Ethics will not allow members of the Judicial Nominating Commission to participate in the selection process when the participation or vote specifically involves a judicial applicant as a partner or associate employed by the same law firm or as a business associate.

Accordingly, we advise Mr. Flink that when he is associated with a judicial applicant as a partner or associate employed by the same firm or as a business associate in his capacity as a member of the Judicial Nominating Commission, he should (a) notify said Commission, in writing, of the nature of his interest in the matter at issue, and (b) refrain from any participation and/or voting in connection with the particular applicant. Notice of any recusal should also be filed with the Rhode Island Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

The Commission takes note of the potential for logistical problems or difficulties that may be triggered when the members of the Judicial Nominating Commission exercise notice and recusal in order to avoid conflicts of interest. In order to remedy the potential quorum and other problems that may arise, it may be necessary for the Judicial Nominating Commission and the legislature to revisit the enabling legislation in order ensure that the recusals required by the Ethics Code do not impede the Judicial Nominating Commission in carrying out its official business (e.g., requiring a smaller number of votes to recommend a candidate to the Governor for his or her final decision, or requiring that an applicant receive a percentage of votes cast rather than an absolute number). Addressing those issues is not, however, within the authority of the Ethics Commission.

Finally, in his advisory opinion request, the petitioner makes reference to Advisory Opinion 95-10 in which the Commission concluded that five lawyer-members of the Judicial Nominating Commission representing clients with legal matters pending before the Rhode Island Supreme Court may evaluate the application of then Acting Chief Justice Weisberger for a permanent position as the Chief Justice of the Rhode Island Supreme Court. The Ethics Commission found that such conduct did not fall within the prohibitions outlined in the Code of Ethics. In addition, the Ethics Commission noted the following in arriving at their conclusion: (a) then Acting Chief Justice Weisberger had the option of recusal from considering litigation matters pending in his court involving lawyer-members of the Judicial Nominating Commission, and (b) once the lawyer-member of the Judicial Nominating Commission makes his or her recommendations to the Governor, said lawyer-member no longer has any involvement in the selection process. We find, however, that Advisory Opinion 95-10, which did not address issues relating to applicants before the Commission as "business associates" of Commissioners, is not relevant here.

Keywords

Business Associate