Advisory Opinion No. 95-81

Re: Julius Krasner

A. QUESTION PRESENTED

Whether a member of the Cranston Zoning Board may participate and/or vote on a matter presented by a law firm when that law firm also represents the Petitioner in an unrelated matter.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that a member of the Cranston Zoning Board may not participate and/or vote on a matter presented by a law firm when that law firm also represents the Petitioner in an unrelated matter. The decision is based on the Commission's finding that the relationship between the Petitioner and the firm representing him falls within the Code of Ethics definition of "business associate." Pursuant to R.I. Gen. Laws § 36-14-5(a) (d) and (f), a member of a zoning board may not participate in matters involving and/or affecting one of his "business associates."

C. DISCUSSION

1. Facts

The Petitioner, Julius Krasner, a member of the Cranston Zoning Board requests an advisory opinion as to whether he may participate and/or vote on a matter presented by a law firm when that law firm also represents the Petitioner in an unrelated matter, specifically, (a) while that unrelated matter is pending, and (b) once the unrelated matter has been concluded.

The Petitioner advises that he owns property which the Pawtucket Redevelopment Agency intends to acquire. The Redevelopment Agency has made the Petitioner an offer, which he finds too low. The Petitioner has hired Taft & McSally, a Cranston law firm to assist with the negotiations. The Petitioner is concerned because on occasion this law firm has represented individuals seeking relief before the Cranston Zoning Board. Taft & McSally may come before the Cranston Zoning Board again in the future and accordingly, the Petitioner requests guidance as to how to proceed. In doing so, he warns that if he must recuse, hardship may result. The Petitioner explained that the Cranston Zoning Board is comprised of seven board members and two alternates. Historically, the board has had difficultly with alternate attendance. He further explained that if an alternate does sit in while a member recuses on a particular matter, although the alternate cannot participate in any other matters, the alternate must remain at the meeting until its conclusion (sometimes 11:30 P.M. or 1:00 A.M.) when the voting takes place. The Petitioner feels this is burdensome to the alternate.

2. Analysis

At issue in this advisory opinion request is whether the Code of Ethics will allow a member of the Cranston Zoning Board to participate and/or vote on a matter presented by a law firm when that law firm also represents the Petitioner in an unrelated matter. 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 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 or the matter at issue."

It is the opinion of the Rhode Island Ethics Commission that a member of the Cranston Zoning Board may not participate and/or vote on a matter presented by a law firm when that law firm also represents the Petitioner in an unrelated matter, while the unrelated matter is pending. However once the unrelated matter has concluded, the member may participate and/or vote in the event that the law firm appears before the petitioner in his official capacity. The Commission bases its ruling on the fact that the relationship between the law firm and the Petitioner is 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." The Code of Ethics specifically prohibits 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 the Petitioner's participation with respect to matters brought by the law firm currently representing him. However when the representation ceases, so does the business association and therefore the substantial conflict.

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 1991, for example, the Ethics Commission ruled that a member of the Cumberland Town Council may not participate or vote in any matter presented by a lawyer during the time that lawyer is also representing the member in an unrelated matter. See Advisory Opinion 91-50. In 1992 the Commission ruled that the Code of Ethics would not allow a Councilman for the Town of Portsmouth to vote or otherwise participate in any Council matters in which a lawyer who is currently representing the Councilman is involved. See Advisory Opinion 92-45.

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. The Petitioner's advisory opinion request does not present facts distinguishing his particular circumstances from the petitioners in the advisory opinions discussed above. Also, the fact that recusal by a member of the Zoning Board may pose logistical problems for the Board is irrelevant. Clearly, if the Petitioner's negotiations with the City of Pawtucket are pending when the firm he has hired comes before the Cranston Zoning Board, the Petitioner and the lawyer would be deemed "business associates" under the Code of Ethics. The financial nexus between the Petitioner and his lawyer is inherent in the representation; that is, it is the lawyer's duty to try to reach the best settlement possible for his client. However, once the representation ceases, so does the financial nexus between the Petitioner and the firm.

Accordingly, we advise the Petitioner that if the law firm of Taft & McSally comes before the Cranston Zoning Board while the Petitioner's negotiations with the City of Pawtucket are pending, he should (a) notify said Board, 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 matters brought by said law firm.

Keywords

Litigation

Business Associate