Advisory Opinion No. 96-52

Re: William F. Smith, P.E.

QUESTION PRESENTED

An appointed member of the Little Compton Planning Board requests an advisory opinion as to whether he can assist, unpaid, the Town of Little Compton in obtaining permits for a parcel of land given that where he previously performed engineering work relating to that parcel for the seller.

RESPONSE

The Code of Ethics does not prohibit the petitioner, an appointed member of the Little Compton Planning Board, from assisting Little Compton on a pro bono basis to obtain the necessary permits during the due diligence period for land and buildings to be used as the new police & fire complex.

The Code of Ethics provides that the petitioner shall not have any interest which is in substantial conflict with he proper discharge of his duties. A substantial conflict exists if a public official has reason to believe or expect that he or she or a business associate will derive a direct monetary benefit as a result of the official's actions. R.I. Gen. Laws § 36-14-5(a) & § 36-14-7(a). R.I. Gen. Laws § 36-14-5(b) provides that the petitioner shall not accept employment which will either impair his independence of judgment as to his official duties or induce him to disclose confidential information. Additionally, the petitioner shall not in any way use his office to obtain financial gain, other than provided by law, for himself or any business which he represents. R.I. Gen. Laws § 36-14-5(d).

The petitioner advises that he previously performed engineering work consisting of obtaining information about percolation tests and water table elevations for the seller of the parcel being purchased by Little Compton. The petitioner advises that this work was completed 15 months ago. Additionally, the petitioner represents that he will not participate in the proposed subdivision plan as a member of the Little Compton Planning Board.

Since the petitioner completed his work for the seller over one year ago, there is no ongoing business associate relationship. See R.I. Gen. Laws § 36-14-2(8). See A.O. 89-20 (concluding that since attorney no longer representing client, the attorney/Council member could participate when the former client appeared before him). See also A.O. 88-48 (council member could participate when his former attorney appears before him).

Also, since the work to be performed by the petitioner for Little Compton is pro bono and will not result in a financial benefit to him or his business associates, the petitioner does not have an interest in substantial conflict with his public duties. See R.I. Gen. Laws § 36-14-5(a) and 7(a). See A.O. 89-23 (advising member of Portsmouth School Committee can serve as unpaid assistant track coach, but if duality of status impairs his independence of judgment as to his official duties, he must recuse); A.O. 96-35 (School Committee member can serve as volunteer baseball coach at the town's high school given that he will exercise the recusal sections of the Code when matters relating to the baseball program come before the School Committee). Compare with A.O. 91-53 (finding that a member of the Richmond Water Supply Board who was also an unpaid employee would violate the Code if he accepted compensation for his employment).

In the event the petitioner encounters matters other than the current subdivision hearing as a member of the Planning Board and believes that his independence of judgment is impaired, he should exercise the notice and recusal sections of the Code and/or seek further guidance from the Commission.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-6

36-14-7(a)

Related Advisory Opinions:

96-35

91-53

89-23

89-20

88-48

Keywords:

business associate