Advisory Opinion No. 95-114

Re: Ronald Newman

A. QUESTION PRESENTED

Whether the President of the Richmond Town Council may participate and vote on matters pertaining to impact fees when his brother serves as legal counsel to a developer who may appear before the Town Council concerning said fees.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that Ronald Newman, President of the Richmond Town Council, may participate and vote on general matters concerning impact fees which may come before him in his official capacity, including matters involving developers who also happen to be clients of his brother or his brother's law firm if the circumstances indicate that his brother or his brother's law firm likely would not receive a direct financial benefit as a result of the action pending before the Town Council. However, the petitioner is cautioned that should any matter come before him in which his brother or his brother's law firm entered an appearance on behalf of a client/developer, or otherwise involves potential financial benefit for his brother or his brother's law firm, he should: (a) notify the Town Council, in writing, of the nature of his interest in any matter, and (b) recuse from participating in any such matter. Notice of any recusal must be filed with the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. The Commission bases this finding on the Code provisions which prohibit public officials from taking an official action which may benefit a member of his or her family pursuant to R.I. Gen. Laws § 36-14-5(a), R.I. Gen. Laws § 36-14-7(a), and Regulation 36-14-5005 ("Nepotism").

C. DISCUSSION

1. Facts

Ronald Newman advises that he is the President of the Richmond Town Council. His brother, a senior partner in a law firm, represents a developer who occasionally appears before the Town's boards. The petitioner advises that although the developer does not presently have any business before the Town Council, he anticipates that the developer in question may appear in some fashion concerning recently enacted ordinances regarding proportionate share development fees and growth rate control--commonly referred to as "impact fees." The petitioner advises that he participated as a private citizen in discussions concerning the impact fees, of which he is in favor, but he recused himself from voting on the ordinances. Since the ordinances were enacted on May 16, 1995, several developers have expressed their opposition. The developer represented by petitioner's brother has not yet expressed a position concerning the ordinances.

Mr. Newman advises that it may be necessary for the Richmond Town Council to take positions or actions concerning the following: (a) deciding whether or not to revise the ordinances; (b) entering into discussions or negotiations with the developers either individually or collectively; (c) initiating, defending, or and/or settling lawsuits; (d) and other issues which may surface pertaining to the impact fee ordinances. Further, the petitioner advises that he is not an attorney and does not have an interest of any kind in his brother's law firm; that he does not have an interest of any kind in any developer; and that he does not own any property which would be subject to the provisions of the ordinance.

2. Analysis

At issue in this advisory opinion request is whether the President of the Richmond Town Council may participate and vote on matters pertaining to impact fees when his brother serves as legal counsel to a developer who may appear before the Town Council concerning said fees. The relevant provisions of the Code of Ethics include the following:

R.I. Gen. Laws § 36-14-5(a), prohibiting a public employee or public official from having "any interest, financial or otherwise, direct or indirect, or engag[ing] in any business, employment, transaction or professional activity, or incur[ring] any obligation of any nature, which is in substantial conflict with the proper discharge of his or her duties or employment in the public interest..." in which "a substantial conflict in the discharge of...[one's] responsibilities," is defined as "a direct monetary gain" or "a direct monetary loss" that accrues, by virtue of the public official's or public employee's official activity, to himself or herself, a person within his or her family, any business associate, or any business by which the public official or public employee is employed or represents pursuant to R.I. Gen. Laws § 36-14-7(a);

R.I. Gen. Laws § 36-14-5(d), prohibiting a person subject to the Code from "us[ing] in any way his or her public office or confidential information received through his or her holding any public office to obtain financial gain, other than that provided by law, for himself or herself or any person within his or her family 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(e)(2), prohibiting a person subject to the Code from "[r]epresenting any other person before any state or municipal agency of which he or she is a member or by which he or she is employed;"

The General Commission Advisory Opinion No. 1, entitled "Nepotism" also provides public officials and employees with further guidance concerning conflicts of interest which involve family members. Code Regulation 36-14-5005 defines family members beyond a spouse and dependent child to include parents, grandparents, adult children, siblings, grandchildren, uncles, aunts, nieces, nephews, and first cousins.

It is the opinion of the Rhode Island Ethics Commission that Ronald Newman, President of the Richmond Town Council, may participate and vote on general matters concerning impact fees which may come before him in his official capacity, including matters involving developers who also happen to be clients of his brother or his brother's law firm if the circumstances indicate that his brother or his brother's law firm likely would not receive a direct financial benefit as a result of the action pending before the Town Council. However, the petitioner is cautioned that, should any matter come before him in which his brother or his brother's law firm entered an appearance on behalf of a client, or otherwise specifically involves potential financial benefit for his brother or his brother's law firm, he should: (a) notify the Town Council, in writing, of the nature of his interest in any such matter, and (b) recuse from participating in any such matter. Notice of any recusal must be filed with the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. The Commission bases its findings on the Code provisions which prohibit public officials from taking an official action which may benefit a member of his or her family pursuant to R.I. Gen. Laws § 36-14-5(a), R.I. Gen. Laws § 36-14-7(a), and Regulation 36-14-5005 ("Nepotism").

This Commission has previously ruled that public officials faced with making a governmental decision which may affect a family member's interests must exercise notice and recusal when such matters arise, concluding, for example, that a member of the Cranston Planning Commission may not participate in matters concerning his son-in-law and/or other members of his son-in-law's firm (See Advisory Opinion 88-07); that the President of the North Kingstown Town Council may not participate in matters involving her brother's business interests (See Advisory Opinion 89-94); that the Senate Minority Leader may not participate or vote on legislation before the Senate Judiciary Subcommittee which may directly result in a financial benefit or effect to his wife, a private attorney, who contributed to the development of said legislation (Advisory Opinion 90-27); that a member of the East Greenwich Town Council may not participate or vote concerning a subdivision application involving a particular piece of real estate while her husband owns an interest in real estate which is contiguous to the parcel at issue in the application (See Advisory Opinion 90-85); that a member of the New Shoreham Town Council may not participate or vote on matters pertaining to the issuance of a liquor license to her father (See Advisory Opinion 93-25).

While the Commission ruled that public officials may not participate in matters specifically involving the interests of family members, the same public officials were allowed to participate and vote when the matters at issue concerned general public policy questions, concluding that "general decisions" concerning a particular issue "do not have a significantly direct effect" on the family member's interests. See Advisory Opinions 92-19 and 92-20. Similarly, the Commission held that in the absence of a "substantive direct financial impact," the petitioner may participate and vote on general matters which may affect a family member. See Advisory Opinion 93-25. The Commission reaffirms the rationale of those holdings here.

In addition, while Mr. Newman may not participate in matters involving his brother, his brother's law firm, or any client they represent before the Town Council, he is permitted to publicly express his own viewpoint in a public forum concerning matters of general public interest or matters which directly affect him pursuant to R.I. Gen. Laws § 36-14-7003 ("Public Forum Exceptions").

Keywords

Nepotism

Family: Acting as Agent

Family: Client's Interest